HC Deb 06 August 1833 vol 20 cc381-9
Mr. John Murray

rose to move for leave to bring in a Bill to repeal the 59th Geo. 3rd. cap. 69, commonly called the Foreign Enlistment Act. He had hoped that some person of more weight than himself would have brought forward this Motion; for there never was an Act of the Legislature so little in accordance with the general opinions of the country. Parliament, however, when it passed that Act, was influenced by reasons which now did not exist. It was strongly urged that the country had made a treaty with Spain in 1814, and that, in accordance with that treaty, we were bound in good faith and honour, to pass a law of that description. That was the strongest reason which was urged in favour of the measure at the time. Mr. Canning, who supported the Bill, stated that in the strongest terms, and that reason prevailed. The House was satisfied; but the law had never given satisfaction to the country. He condemned the law, because it was unjust, unnecessary, inexpedient, and not calculated to give satisfaction to any of the parties interested. It was unjust, because it was the natural right of every man, when his country did not want his services, or could not employ him, to carry his industry, his skill, his talents, and his arms, into the service of any foreign country which might want his assistance. In particular the Act was most unjust to those gallant officers who had been dismissed at the peace, and who had no other means, not merely of raising themselves into distinction, but of saving themselves from poverty, except that of continually exercising their talents in that profession to which they had devoted their lives. Was it just to brand such men as criminals when they accepted foreign service?—and was it just to make their doing so a misdemeanor in the eye of the law? He did not deny the power of the Legislature to make such a law, but he denied the justice of the enactment. There was no greater spoliation than that which deprived a man of his natural right and natural liberty to make the most be could of his talents and his time. There was no right of property which, in his estimation, ought to be held more sacred than the right of every man to make the most he could by his industry. Yet for officers, whose business was arms, to enter a foreign service, was by this Act branded as a misdemeanor and a crime. He said, therefore, that the law was unjust; and it was as unnecessary as it was unjust. It was not necessary to preserve neutrality. He was prepared to prove, though he would not then trespass on the House, that there was no writer of any authority on the Laws of Nations—neither Vattel nor Bynkershoeck, who laid it down as a breach of neutrality, for individuals to serve in any country whatever. Provided men did not carry arms against their native Sovereign, they were at liberty to enter a foreign service, and were not guilty of a breach of neutrality by their entering into such a service. The Act was inexpedient, because it gave rise to complaints of a breach of neutrality, when the Government was unable to prevent its subjects entering a foreign service. It promised, therefore, what it could not perform, and was inexpedient by making, foreign Governments look to our Government for what it could not accomplish. It was, he thought, also useful, that our officers should keep up their skill in arms, when our own country was at peace; and it was, far better than starving at home, that they should go abroad, where they improved their skill, and added to the military renown and glory of their country. He would not say, that the Government ought to encourage them to go, neither ought it to restrain them on the ground of taking care of them. The Government was not to consider itself a careful nurse of men, and keep them out of danger; it should leave them to run the risk, or take care of themselves. The law was useless, too, and merely encumbered the Statute-book. If it had no effect, it might be asked why he complained of it? He complained of it because it encumbered the Statute-book, and because it was a disgrace to the Legislature to frame enactments which were of no use. Nobody now desired the continuance of the law. There was no large class of the community who wished it to be retained. He believed, however, that his Motion was not to be opposed, and he would not enter into long arguments with a view of refuting objections that might never be made. He would not tire the House with going further into the subject, as he should only risk disturbing that unanimity of feeling in favour of his Motion which he believed would prevail. The hon. Member concluded by moving for leave to bring in his Bill.

Mr. Cobbett

did not rise to oppose the Motion, but merely to state, that he believed that the hon. Member was wrong in his law. The hon. Member had referred to Vattel, and some writer with a hard German name; but all those writers must admit, that the Government must have power to restrain its subjects and prevent them going into foreign service, or it would have no power to protect itself. The hon. Member contended that we ought to supply neither party with stores or men. Such was the doctrine laid down by the American Government during two wars, and on that doctrine it had successfully acted. With respect to officers starving, that could not be, for they had all half-pay; and as that half-pay was given them to retain their services in future for their own Sovereign, how was that compatible with entering a foreign service?' He said he did not mean to oppose the Motion; he only rose to say that he thought the hon. and learned Gentleman was wrong in his law.

Sir Robert Inglis

did not rise to oppose the Motion, but to protest against some of the doctrines of the hon. Member. The hon. Member spoke of men entering a foreign service as if they might abandon their country. He must object strongly to the doctrine of the hon. Member. The hon. and learned Gentleman had referred to the natural right of men to carry their talents, their skill, and their arms, into the services of foreigners for the purposes of war. He must deny that there was any such right. It was making that the common privilege of individuals, which was the last resource of patriotism, to which nations under the guidance of reason could apply. No man, he contended, had a right to kill his fellow man, except in the cause of his country. No man had a right to shed blood. The command was, that blood should not be shed. He was afraid, from what he saw, that the House was prepared to admit, that men might carry their strength to a market of blood. He heard it said, that men might fight for a good cause; then one side in every contest in Europe must be good. That would risk embroiling us with every State in Europe. That, however, was not the only view in which he objected to the doctrine of the hon. and learned Gentleman. He objected to it, because the doctrine was injurious to the principles of morality, and was subversive of all rational liberty. If they admitted the doctrine of the hon. Member, they must be prepared to run the race of the Buccaneers at sea, and of the Condottieri on land. It would revive the law and the trade in war which existed in the thirteenth and fourteenth centuries. He denied that any men could engage in a war, or take life, except by the command of their lawful King. War was not a game for subjects to play at, nor for Kings either; and was only to be had recourse to, and could only be considered lawful, when in defence of the liberty of the country and of religion. He saw it was in vain to oppose the Motion, and he did not rise for that purpose, but only to protest against the doctrines of the hon. Member.

Mr. O'Connell

said, none of the arguments of the hon. Baronet had shown that the Act was operative and effective, or could be made so. In fact, it could not. What had happened in Ireland? Why twenty-five Acts had been passed against the Irish entering into foreign service, threatening them with all the horrors of drawing and quartering; and, within fifty-years after the Treaty of Limerick, 144,000 Irish had perished in the service of France. The present Act was a most clumsy contrivance. It could not be executed. Parties offending against it could only be convicted by the evidence of an accomplice, which was precisely that sort of evidence a man would not like to trust. This Act was imperative on nobody. It bound neither the Crown nor the people to execute it. The Crown could dispense with it by a proclamation, and it exposed the Crown to suspicions. The party which desired to enforce its operation, finding it not successful, of course accused the Government, and thus it might give rise to war. It was a statute which ought not to exist; it was wholly unwarranted, and it ought to be repealed. With respect to the doctrine of the hon. Baronet, it might be carried further. It would, perhaps, justify those men who went about among the soldiers distributing pamphlets three or four years ago, telling them that war was a bloody trade. The doctrine of the hon. Member did not go far enough, or it went a great deal too far. The hon. Member said, that a lawful King might command war; but he (Mr. O'Connell) said, that no lawful King could properly command his subjects to cut the throats of men in an unjust cause. He admitted, that men might fight for liberty and for their country; but he denied that they might fight for religion. He protested against the doctrine that men should fight in defence of their religion. There was no doctrine which had done so much mischief in the world as that of fighting for religion. Religion was not made to be fought for, and there was bitterness enough in the world without mixing up blood in the chalice of salvation. He felt it his duty to protest against the doctrine of the hon. Member. It was time that men were disabused of the notion that they might fight and shed blood, if they were commanded, by a lawful King. That doctrine struck at the root of all morality. Men should only fight in a just and good cause. He must say, that he did not think the hon. member for Oldham was very correct in his law. Men might engage, he thought, in any war, if it were just. Foreign nations might have just wars as well as ourselves, and in them a man, convinced of the justice, might properly serve. It must, to be sure, be a strange conviction which could enter the mind of any man, that the cause of Miguel was just, yet beef and pork were sent from here to support him, and arms for his men to kill the Pedroites; everything was supplied to him. The only question was, could he pay? But when it was admitted, that the instruments of war might be supplied, was it forgotten that those instruments were made by men? The instant, however, a man went to use the instruments, then it became a crime. Could any man believe in his conscience that the gallant Napier, in assisting Don Pedro, was guilty of a crime? That gallant officer was fighting in the cause of constitutional freedom. He was assisting to establish a portion of the democratic principle in the South of Europe, and fighting the good fight against that despotism which might otherwise overshadow the earth. No man could think that this was abominable. The conquest of the gallant Napier had rescued one part of Europe; freedom might be secure on that side, and might now turn her attention towards the despot of the north, and be prepared to clip his eagle wings. The question was in that state that he thought it wrong to take up the time of the House, but he would give the Motion his hearty support.

Colonel Evans

would not quarrel with the essays of morality which had been pronounced by the hon. Baronet, the member for Oxford, though he must complain of the comparison on which the hon. Baronet had placed the gallant heroes who would serve in a good cause with the buccaneers and condottieri of former times. The buccaneer had served solely with a view to plunder, and with a total indifference as to the cause in which he served; not so in the case now before the House. Neither could the individuals affected by the Foreign Enlistment Bill be put in comparison with the condottieri, for, unlike that body, they did not serve the cause which could pay the best. If any man could bring himself to believe, that the cause of Don Miguel was just, it would be an injustice to prevent others from embarking in that of Don Pedro. In every point of view, he considered the repeal of this Act desirable, and particularly as the employment of officers in the British service in warfare would contribute, in case of need, greatly to the efficiency of the army of this country. The navy of this country had been much strengthened by the recent achievements of Captain Napier, as it had previously been by those of Lord Cochrane, in the cause of freedom, and it was expedient to repeal a Bill which had been inoperative for good, but operative for evil purposes. The Bill originated twenty years ago, in a wish to prevent the service of British subjects in the South American war; yet 20,000 English subjects had been engaged in those wars, which had not only damaged the commerce of this country, but also had greatly prolonged the horrors of those wars. So, also, in the case of Greece, with regard to which there was a declared neutrality on the part of the Government of this country; yet when the contest continued, the Government had found it necessary to interpose. This would not have been required if the present law had not existed, neither would the Russians be, as they now were, in possession of the Black Sea. The war in Portugal had been protracted in the same way, and he believed, that, but for the law now in force, a saving of from 200,000l. to 300,000l. a-year would have been made in the pension-list of this country, because many lives would have been lost in the war, and many officers would have been otherwise employed.

Mr. Cobbett

, in explanation, said, that the law of the Holy Alliance, as this was called, went word for word with an Act passed eighteen months before by the American Congress.

Sir James Scarlett

had opposed the Bill in question when it was first brought forward, and experience had proved to him that it afforded no practical advantage. He must, however, remind his hon. and learned friend opposite (Mr. Murray), that, if he repealed the Bill generally, he would make that a felony which now only amounted to a misdemeanour. He was not disposed so much to differ from the law of the hon. member for Oldham. It was admitted, on all hands, that there was a power by the common law in the Sovereign to restrain his subjects from joining or engaging in a war, and after a proclamation, by making it a misdemeanour. He had ever thought that power sufficient. By the common law it was an act of felony for a British subject, after the proclamation of his Sovereign, to join the army of any acknowledged government; but this did not apply to revolted provinces, and hence it was, that, with regard to South America, complaints had been made by the Spanish minister, that the laws for the prevention of interference by British subjects were unequal. He should support the Motion so far as it went to restore the old common law of the land.

Sir Edward Codrington

supported the Motion, and observed that he differed from the statement that there was no distress amongst those who had served their country. He would ask, was 250l. a-year a fitting reward for a man like Captain Napier, who had encountered so many dangers and disasters? The distress amongst half-pay officers was great, and it was refused to afford a man the opportunity, by his own exertions, of alleviating that distress. It had occurred to himself', that on an application he had made to the Admiralty, on behalf of a lieutenant in the navy, leave had been refused to hire to engage as mate on board a merchantman. The half-pay of the individual was about 90l. a-year, and it was said at the Admiralty, that such a service as that in which he sought permission to engage, was not worthy the station he held. He could not see why, when merchants were not impeded in their traffic with contending parties, those engaged in the service of this country, actuated not by desire of mere lucre, but by feelings of high honour, should be prevented re-embarking their services in any cause they liked. He felt indignant to hear gallant officers, who had gloriously engaged in such service, spoken of in the manner which had reached his ears. As to the service of this country in a pecuniary point of view, he had himself told fathers rather to cut their sons' throats than to permit them to enter it. He must confess, that he honoured the services of Captains Napier and Sartorius upon the recent occasions, and when the importance was considered of an opportunity of bringing up young officers so as to be able gloriously to carry on a war, should it, contrary to his wishes, arise, he was sure the House would be unanimous in getting rid of this odious Bill. He called it an odious Bill, because it prevented the advancement of those engaged in the service of their country, while it presented no obstacle to an avaricious trading in the materials by which alone a warfare could be carried on. He gloried in the breach of this law by Captains Napier and Sartorius, and they had added to the reputation of their country, and he hoped would be restored to their rank in its navy.

Mr. Finch

gave every credit to the valour of the gallant officers who had been mentioned, but he thought, on the consideration of such a subject, the interests of the State ought not to be forgotten. The House ought to pause before it did away with a law which might become essentially necessary, under a peculiar state of circumstances that might arise.

Lord Althorp

was of opinion, from the experience he had of the Bill, that it was detrimental to the country, as well as inoperative in itself; and, therefore, he most certainly thought it should not remain on the Statute-book. Much had been said about a breach of neutrality as to contending parties, but he thought, if the laws of a country allowed its subjects to assist both according to their own feelings, there could not be said to be any breach of neutrality. He could conceive cases in which it would be the bounden duty of the sovereign to interfere with the powers with which he was invested by the common law—he meant in cases of the training and disciplining of troops in this country for the service of foreign states, which clearly would be a breach of the common law, and might be much better prevented by it than by any provision contained in the Foreign Enlistment Bill. By repealing that law, the Sovereign would not be liable to the imputation of not enforcing the execution of the law, which was almost impossible. He should, therefore, give his most cordial support to the Motion.

Mr. Kemyss Tynte

supported the Motion, and deprecated the comparison upon which the hon. Baronet (the member for Oxford), had placed the British sailors with buccaneers and condottieri; the first fought for the cause of liberty, and the latter for those who could pay the best. He should vote for the Motion if it only had the chance of restoring Captain Napier to his rank in the British navy.

Mr. Robert Grant

considered the question before the House to be entirely independent either of questions of neutrality, or the effect of the common law; and it was practicable to vote for the repeal of the act in question, without broaching either of those topics, both of which had been introduced into the debate. It must be in the recollection of many hon. Members the grounds upon which the Bill had been introduced by Mr. Canning in the year 1814. Mr. Canning had then stated the Bill to originate in a treaty with Spain, under which the Sovereign of these realms had undertaken that no supply of arms, ammunition, or men, should be afforded from this country to South America, and that no security was afforded to the Crown for the fulfilment of this treaty without the passing of the Act in question. Though the Bill pledged the nation generally to neutrality, yet it never was intended to pledge its subjects individually from engaging, if they should so think fit, in foreign services; and reverting to the history of this country, he felt no hesitation in now giving his support to the present Motion. Without acceding to the accuracy of the law laid down by his hon. and learned friend who had brought forward the Motion, he should reserve to himself the right to discuss the provisions of the Bill when it should be introduced.

Leave given—Bill brought in and read a first time.