The Attorney General
rose, to move for leave to bring in a bill to prevent enlistments, and equipments of vessels for foreign service. Every state, he observed was at liberty to set restrictions on its subjects to prevent them from entering into the service of other states for the purpose of warfare. The law of our country on this subject, founded on a statute of Geo. 2nd, made it an offence amounting to a felony to enter into the service of a foreign state. The object of that law was, to prevent his majesty's subjects from engaging in the service of any state at war with another state with which he was not at war. But it was important to the country, that if neutrality was to be preserved, it should be preserved between states that claimed to themselves the right to act as states, as well as between those that were acknowledged to be states. The words 363 of that statute might, however, raise a doubt how far it was intended to embrace those entering into the service of states not acknowledged to be such. It would be a most absurd statement of the law to say, that those enlisting in the service of an acknowledged prince or state, violated the law by doing so; and yet, that they were not prevented from entering into the service of unacknowledged states. The object of his bill, in a certain degree, was to amend the statute, by introducing, after the words, "king, prince, state, potentate," the words, "colony or district who do assume the powers of a government." The intention of introducing these words was to make enlisting in the service of unacknowledged powers, the same as enlisting in the service of those that were acknowledged. The law, as it stood, on two statutes, the 9th and the 29th of Geo. 2nd, annexed the heavy penalty of felony to the offence of enlisting in the service of a foreign state; but although the law, as it formerly stood and as it now stood, was equally against entering the service of acknowledged and unacknowledged states, yet it could not punish those who entered the service of unacknowledged powers. If any mother country were at war with her colonies and the subjects of this country enlisted in the service of those colonies, the law could not punish them; but if they enlisted in the service of the mother country, which was a legitimate power, they were liable to the penalties of felony; for to enlist in the service of an acknowledged state certainly was a felony, as the law now stood. Looking at the circumstances of the times in which those laws were passed, it was not necessary to enact, that persons enlisting in the service of unacknowledged powers should be considered guilty of felony. But to make the law consistent, it was his object, by this bill, to reduce the penalty from a felony to a misdemeanour, and to make the law equally applicable to acknowledged and to unacknowledged powers. Enlisting in the service of those persons who had assumed to themselves the powers of a government (whether they were justifiable or not in assuming those powers he should not inquire, because he wished to avoid the political discussion of such a question), was a violation of that neutrality which this country professed to observe. He wished merely to give this country the right which every legitimate country should have, to prevent its subjects from 364 breaking the neutrality existing towards acknowledged states, and those assuming the power of states. It was in the power of any state to prevent its subjects from breaking the neutrality professed by the government, and they were not to judge whether their so enlisting would be a breach of neutrality or not. It was important to the country that the law should decide, that no man should have a right to enlist in foreign service. That, in fact, was the meaning of the acts of George 2nd; and those acts would have been so expressed, if the circumstances which had since occurred had been foreseen. The law was "You shall not enlist in warfare under any foreign power, whether assumed or not, unless with the sanction of the executive government." The first object of the bill, then, was, to make the law equal, and to make the restriction extend, to self-assumed as well as acknowledged powers. The second provision of this bill was rendered necessary by the consideration, that assistance might be rendered to foreign states, through the means of the subjects of this country, not only by their enlisting in warfare, but also by their fitting out ships for the purposes of war. It was extremely important, for the preservation of neutrality, that the subjects of this country should be prevented from fitting out any equipments, not only in the ports of Great Britain and Ireland, but also in the other ports of the British dominions, to be employed in foreign service. The principle in this case was the same as in the other, because by fitting out armed vessels, or by supplying the vessels of other countries with warlike stores, as effectual assistance might be rendered to a foreign power as by enlisting in their service. In this second provision of the bill, two objects were intended to be embraced—to prevent the fitting out of armed vessels, and also to prevent the fitting out or supplying other ships with warlike stores in any of his majesty's ports. Not that such vessels might not receive provisions in any poet in the British dominions; but the object of the enactment was, to prevent them from shipping warlike stores, such as guns and other things obviously and manifestly intended for no other purpose than war. These were, the objects of the bill, and unless it appeared to the House that they ought, to distinguish between legitimate states (perhaps he ought not to use the word] legitimate—he meant acknowledged 365 states), and those self-constituted states that were unacknowledged, he could not anticipate any objection to the bill. If he were asked, whether enlisting in the service of an unacknowledged state was an offence against the common law as it now stood, he would say it was; but the only way of putting the law in force was through the medium of the legislature, as an act of parliament would embrace the subject at large. He then moved for leave to bring in a bill to prevent enlistments and the equipments of vessels-for Foreign Service. Before he sat down he begged to add, what he had forgot to mention when explaining the objects of the bill, that he proposed the penalty on the first offence should be for a misdemeanour, and on the second for a felony.
§ Sir James Mackintosh
said, that if he could consider the present measure of his hon. and learned friend, merely as the introduction of a reform into our criminal legislation, he would not, on the present occasion, have made a single remark; or if he had, would merely have expressed his approbation of the proposed amendment of the law. The repeal of the two statutes of the 9th and 29th George 2nd, which constituted the entrance into the service of a foreign government a felony, he highly approved of; and he might, if they had not now been brought into discussion by his hon. and learned friend, have felt it his duty to have brought them soon under the notice of the House. They were founded merely on temporary circumstances, and enacted penalties which were revolting to humanity, and which, therefore, now could never be inflicted. His hon. and learned friend had given to these statutes a general character, as applying to all times and circumstances; but if he had looked into history, he would have seen that they were intended merely for temporary purposes; namely, to prevent the formation of Jacobite armies, organized in Spain and France, against the peace of this country. Though his hon. and learned friend, however, had endeavoured to disguise the subject, and to keep out of view the immediate objects which the measure was intended to serve, it was impossible to mistake its general character, or to avoid seeing its evident tendency. It was indeed a measure of temporary policy, affecting deeply the character and interests of the country, and requiring the most 366 serious attention of the House before they proceeded one step in the enactment The bill which his hon. and learned friend, moved for leave to introduce might, how ever it was worded, and however cautiously its object was concealed, be entitled, "a bill for preventing British subjects from lending their assistance to the South American cause, or enlisting in the South American service." The cautious abstinence of his hon. and learned friend from the political question could not cover his purpose. On the general subject of the law, as it was now proposed to be amended, he would not make many observations. It was impossible to deny that the sovereign power of every state could interfere to prevent its subjects from engaging in the wars of other states, by which its own peace might be endangered or its own interests effected. His majesty could command his own subjects to abstain from acts by which the relations of the state with other states might be disturbed, and could compel the observation of peace with them. The question, could not therefore turn upon this. He was surprised indeed to hear that this principle could be made a matter of dispute or doubt with his hon. and learned friend. It was from the assertion of it, at the present moment, that his suspicions were awakened. Why was the House called upon, at the present time, to assert a doctrine which no one doubted, unless it was meant to apply it to temporary objects? Was the principle itself doubtful, or was honest neutrality intended by the measure? The principles of neutrality only required us to maintain the laws in being, as they might affect the character of the belligerent; but they could not command us to change any law; least of all, could they require us to alter our laws for the evident advantage of one of the parties [Hear, hear!]. He was aware that his hon. and learned friend had said, that the enactments of his bill had placed both upon a level; but so far. as they exchanged the existing law, they were in favour of one of the parties. According to the two statutes which this bill was intended to repeal, an evident advantage was enjoyed by one of the belligerents; and this bill was intended therefore to make the condition of one of them better, and of the other worse, than it was before. It was so far, therefore, a departure from our neutrality; as it made a law to affect one party to the detriment 367 of another. His hon. and learned friend, therefore, instead of introducing a measure to preserve the equal rights of the parties, had introduced a measure in effect quite the reverse, it ought to be recollected, that those who engaged in the service of insurgent states, or states that have not been acknowledged among the family of nations, however respectable in themselves, were in a much worse situation than those who assisted recognized governments, as they could not be reclaimed as prisoners of war, and might, as engaging in what was called rebellion, be treated as rebels. This, therefore, might be one reason why they were exempted from the penalties authorized to be inflicted by the statutes of the 9th and 29th of George 2nd, the dangers to which they exposed themselves being considered sufficient to deter them. This new law, or this declaratory law, as his hon. and learned friend had called it, would go to alter the relative risks, and would become in fact a law of preference in favour to one of the parties. It was an impolitic and severe measure against a people struggling, not to throw off the yoke of the mother country, but contending against its re-imposition, after they had freed themselves from it. It was, in fact, an act of hostility towards South America, and of favour towards Spain; and viewing it in this light, he was sure it would be looked upon with regret by all the friends of freedom, and excite the indignation of the people of England. If the House did not oppose it—if they did not show their disapprobation of a measure so impartial in its nature—he would say, that they were dead to the interests of the nation, and were acting contrary to the opinions and the wishes of their constituents. He would not now enter farther into the proposed measure; other opportunities would occur during the progress of the bill for pointing out its tendency, as an occasion would arise in a few days for considering the general course of our policy towards those states against which it was directed. In the meantime, he could not refrain from expressing his disapprobation of a measure which he could consider in no other light than as an enactment to repress the rising liberty of the South Americans, and to enable Spain to re-impose that yoke of tyranny which they were unable to bear, which they had nobly shaken off, and from which, he trusted in God they would 368 finally be enabled to free themselves, whatever attempts were made by the ministers of this or any other country, to countenance or assist their oppressors [Loud cheers].
protested against the: introduction of the political topics with which the hon. and learned gentleman had filled his speech—a speech which while it professed to advocate the principles of neutrality, was as far from the spirit of neutrality as any that he had ever heard in that House. He would appeal to the House and the country—who he trusted, too well understood what the principles of neutrality and the character and honour of the nation required, to be deceived by the sophistry of the hon. and learned gentleman—whether they would depart from that regard which they owed to an acknowledged and friendly state, by allowing our subjects openly to take part with its enemies. With regard to the law as it formerly stood, he would say nothing; the policy of repealing the statutes of Geo. 2nd, referred to, even the hon. and learned gentleman admitted. He (lord Castlereagh) conceded to him that these statutes were not so much intended to secure a neutral conduct, as directed against a species of armament which threatened this country. But as his hon. and learned friend had moved for the repeal, it was thought proper to bring in a bill to uphold our neutrality, and to prevent the subjects of this country from entering into a service injurious to an acknowledged state. This law was necessary to prevent us from giving cause of war to Spain against us; and he was sure that the House was too just and generous to think, that because Spain was weak, and because her fortunes had declined, we ought therefore to permit her to be oppressed, and to do that which we would not have done if she were in other circumstances. He would ask the hon. and learned gentleman himself, whether, if common justice was not sufficient, it was not our duty to carry into effect the intentions which we professed? Was not the proclamation issued about eighteen months ago approved of, both in this country and America, as perfectly just in the principles of neutrality which it declared? And was it not a breach of that proclamation, when not only individuals whom perhaps it would not have been impossible to restrain, not only officers in small numbers went cut to join the insurgent corps, but 369 when there was a regular organization of troops, when regiments regularly formed left this country, when ships of war were prepared in our ports, and transports were chartered to carry out troops and ammunition? It was to prevent this that the present bill was brought in; and he would ask any member of the House, if such things were permitted, how we could boast of our neutrality? Indeed, so far from doubting the policy of the present measure, he owed some apology to the House and to the country, for not bringing it forward sooner; and he thought that the best apology would be an explanation of the reasons for delay. Till lately there was some hope of a mediation between Spain and her colonies; and so long as that expectation lasted, he wished to say nothing concerning the general policy of the existing laws. All these hopes were at an end, and it was now our duty to adopt a general system by which our conduct ought to be guided towards the parties while the war continued. It was a duty we owed to Spain, and to our own honour, while we professed to be at peace with her, not to allow ships of war to be equipped in our ports, or armaments to sail from them against her. The government of this country, during the whole of the contest, had observed the strictest neutrality even from the beginning; we were allied with Spain in active warfare; we had declared that we would not assist her against the South Americans; and we had hitherto carefully abstained from every act that could bear the appearance of favour or preference to one party or the other. It now became us to adopt a measure by which we might enforce the common law against those whose conduct would involve us in a war, and to show that we were not conniving, as we were supposed with one of the parties. Spain had made many remonstrances on the subject, and it was not till every hope of a reconciliation between her and her colonies had failed, that government had been induced to propose a law which ought to have been sooner introduced. It was, therefore, a little too much in the hon. and learned gentleman to censure the government of this country, as being hostile to the South Americans and partial to Spain, while we had delayed doing what another government, which he would allow to be free and popular, had done long ago. He would ask him, had the United States done nothing to prevent their sub- 370 jects from assisting the South Americans? They had enacted two laws upon the subject, nearly of the same tendency as that now proposed. Would it not be a breach of our neutrality to allow whole regiments to join one side, while it was felony for a single individual to join the other? Was it not a disgrace to the country to preserve a law so unequal as that which inflicted death for assisting Spain, and allowed no means of preventing assistance being given to her enemy? The object of the present bill was only to make the law uniform, as regarded both, and to reduce the severity of its penal enactments. He should be ready to give explanation at the different stages of the bill, or to support its different clauses: but he must again protest against such conduct as that of the hon. and learned gentleman, who found out partiality where none was intended, and declared that we were unjust to one of the parties, because we wished to place both on the same footing [Hear, hear!].
§ Mr. Ellice
said, that he could not profess any desire to maintain the neutrality for which the noble lord was so very solicitous, as he had no hesitation in avowing that he was a decided friend to the cause and object of the people of South America. Though the present measure was one of apparent neutrality, it was an act of real favour to one of the parties, and of hostility to the other. He would therefore watch it with severe jealousy. The government of this country had acted inconsistently; for either they had encouraged British subjects to embark in the American cause, or why had they not prevented them by adopting this measure sooner? He would ask the noble lord whether he did not know that upwards of 5,000 perhaps nearly 10,000, persons from this country had engaged in the naval and military forces of the insurgent states? Were all these subject to the penalties of the proposed law. Would the noble lord send out a fleet to the Pacific, to bring home the 3 or 4,000 seamen who were now on board the vessels of the new republic? He rose to express his dissent from the bill, and to declare that at every stags he would give it his decided opposition.
said, it was not intended that the measure before the House should be retrospective.
§ Mr. George Lamb
contended, that if this measure was now justifiable, we were 371 remiss in not having enacted it sooner. It appeared to him, however, to proceed from no regard to neutrality, from no returning sense of justice, but to be intended to prevent the people of this country from going to the assistance of those who were struggling for their liberties, against what he would not trust himself with describing. It would have been much better to have declared this specific object than to have concealed it under a general enactment through which it was easily seen. The statutes which it was to replace referred only to particular circumstances, tot he enlisting of troops in France and Spain against this country, and was never intended to be permanent. Instead, therefore, of improving the old law, this measure constituted an entirely new one, to answer new circumstances. It was an egregious error, to allege that a measure of this nature was in accordance with the principle of the statutes of George 2nd for the object of those statutes notoriously was, to prevent British subjects from being engaged in hostility with the British government. But such was not the purpose of the bill proposed by his hon. and learned friend. That bill had indeed a materially different object. He admitted the right of the government to prevent its subjects from enlisting in the service of a foreign state, without the permission of his majesty; but he regretted to witness a disposition on the part of the government of this country, which ought to be the principal guardian, as it had long boasted of being the favourite abode of liberty, to restrain any part of its population from becoming the champions of that sacred cause, for which the people of South America were so gallantly struggling, against the universally degraded and fortunately decrepid government of Spain.
said, that the penalty of the former acts was by far too severe, and that, in consequence of their severity, they had become a dead letter on the statute-book. His hon. and learned friend, however, (sir J. Mackintosh) who was so well acquainted with history, was wrong, he thought, in supposing that they owed their origin to a design to prevent the formation of Jacobite armies. Before the 9th, and still more before the 29th, of Geo. II., all apprehension from the Jacobites had ceased. He believed that the statutes in question were rather intended to prevent British subjects from becoming soldiers of fortune in the service of other 372 states—a practice common at that period. The substitution of the milder penalty proposed in the present bill, appeared to him a great improvement. This brought him to the second part of the question—Was it proper to prevent troops from being raised for the service of Spain in this country, and to allow them to be raised to assist the insurgents? When we heard of great bodies of men sailing for America, and saw transports preparing in the river, it was impossible to deny that we permitted acts in direct violation of our neutrality. The cause of blame was, therefore, not that we had proposed a law too soon, but that we had delayed it so long. But his hon. and learned friend had said, that the proposed bill was not of a neutral character, because it took away an advantage from one party, and placed them both on a footing. He would ask any hon. member if this was a breach of neutrality. It was a measure which we were bound in justice to enact. He was as little inclined as any hon. member to enter upon the political question. It mattered not what were the feelings and wishes of different individuals. They were here now acting as legislators, in behalf of England, and as a part of the supreme power of the state; and therefore it became them to maintain their relations with other states on an equal footing, not permitting unrecognized governments to enjoy what we refused to acknowledged governments. He objected to that part of the bill which went to aggravate a second offence into a capital felony—a severity of enactment which he thought unnecessary, as it was not likely, that offenders who had been punished by imprisonment once, would expose themselves a second time.
said, he was convinced that his hon. friends who spoke against the measure, expressed the sentiments of nine-tenths of the people of the united kingdom. Were we, whose boast it was to value freedom, and whose duty it was to extend its influence in every part of the globe, to sacrifice our character by restraining the efforts of those patriots in rescuing themselves from a bondage imposed on them for centuries? If the real object was neutrality, let the restrictions as they affected Spain, be repealed altogether, and let it be open to the people to give their services to whichever party they pleased: the public feeling on the question would then be manifest. It was 373 not his intention, in that stage of the measure, to argue it on the nature of our external and internal policy, but he could not help observing, that at a moment when the gallant soldiers who had fought the battles of the country were in a great proportion paupers on their parishes, and when British officers were subsisting on a miserable pittance, it was most extraordinary they should be forbidden from following their own disposition to espouse the cause of liberty and independence in another hemisphere, under the penalty and disgrace of transportation for seven years.
§ Sir J. Newport
said, the noble lord had stated, that the government of this country had postponed the proposed measure until the mediation between Spain and the South American provinces had terminated. In that assurance he did not concur with the noble lord. He was rather disposed to believe, that ministers had waited until they found that the negotiations of Spain with the United States of America had ended in a cession of territory to the latter. He should not go into the subject then, but feeling as he did, that it was a most important question—a question on which the opinion of the country was more decidedly made up than perhaps on any other political topic, he should give it his opposition in every stage of its progress.
§ Sir W. De Crespigny
believed the interests of the country were never more concerned than in the issue of the South-American cause. Any measure likely to operate against its success was most injudicious; and from information he spoke when he stated, that an armament was now preparing to sail from Spain against Monte Video. The nature of our commercial connexion in that quarter of the world was too important to be overlooked, or hazarded by any injudicious interference.
, of Galway, observed, that be certainly should vote for the bill, and he should do so, even were he in the habit of offering up his earnest prayers day by day and night by night, for the success of the South Americans, and the emancipation of that continent from the thraldom of Spain. But, whatever his opinion as an individual might be, as a member of parliament he was bound to view the question, as it affected the policy and interests of this country. That policy was on all sides admitted to be neutrality. 374 To empower the crown to preserve that neutrality, the legislature must afford it the necessary means. As one of those necessary means then he supported the present bill. To the hon. and learned gentleman who spoke from the other side (sir J. Mackintosh) and to every observation of his, he had listened with profound respect; he had stated, that there already existed numerous disadvantages to restrain persons from engaging in the service of the South Americans without the present measure; that they were subject to be treated as rebels, and could not be claimed as prisoners of war. Knowing, then, that such penalties attached to such a course, was not that House, on the principles of humanity, bound to interpose, and to restrain the subjects of the king from precipitating themselves into situations of peril, where they were deprived of the ordinary rights of war? It was a principle on which the House frequently legislated: it did so when it endeavoured to restrain gambling: it interfered with no liberty of the individual, but the liberty of ruining himself.
§ The gallery was cleared for a division but none took place; and leave was given to bring in the bill.