§ Earl Bathurst
rose to move that the bill be committed. His lordship observed, that 1378 the object of this measure was, to prevent his majesty's subjects from engaging in foreign service, from fitting out, equipping, or arming vessels for warlike operations against countries at peace with his majesty, without licence. By an act passed in the 9th of George 2nd, it was made felony without benefit of clergy, for a British subject to enter into the service of any state, sovereign or potentate, without his majesty's licence; an act was passed in the 29th in the same reign to prevent his majesty's subjects from serving as officers under the French king; and in the 9th of his present majesty an act was passed to prevent subjects from serving foreign powers without his licence, and to compel the officers of the Scotch brigade in the service of Holland to take the oaths of allegiance and abjuration. Acts having the same object were also passed in Ireland. It had been found that persons, without receiving enlisting money in this country, went abroad and enlisted. This contrivance was, therefore, guarded against by clauses in the act of the 29th Geo. 2nd, and the enlisting out of the country, or the seducing of his majesty's subjects so to enlist, was made felony without benefit of clergy. It was pretended that these laws had been framed solely to prevent enlistment for the Pretender; but that such was not the fact, their enactments, as well as the manner in which they had been carried into effect, showed. It was certain that the act of the 9th Geo. 2nd had been executed, without any reference to the Pretender, against enlistments for the service of the king of Prussia. Having stated how the law stood at present, he had to explain the circumstances which called for the present measure. Soon after the late peace it was discovered that several British officers had left this country to enter into the service of the Insurgents of South America. While the number who adopted this course was small, the government did not consider it necessary to notice their engagements. When, however, the number increased, and became very considerable, it was thought expedient to take such steps as might mark that such engagements were not made with the consent of his majesty's government. It was accordingly notified to officers on half-pay, that those who enlisted in foreign service, without his majesty's licence, would not be entitled to that half-pay. This step, however, 1379 had not the desired effect. The disposition to enter into the service of the Insurgents continued, and recruiting for their service was openly practised in the country. Soldiers were raised, regiments formed, uniforms of various descriptions prepared, considerable bodies openly embarked for South America, and it became necessary to think of some more effectual means of prevention. It was found, that the existing laws did not afford sufficient means. According to the law, any British subject enlisting without his majesty's licence, in the service of any foreign prince, state, or potentate, was, on conviction, guilty of felony; but this law did not apply to the South American Insurgents. At least it appeared very doubtful, whether persons enlisting with these Insurgents could come within the provisions of the law; and it was fit that the doubts which existed on that subject should be removed. The situation in which this country stood, with respect to Spain was also to be considered. By the treaty of 1814, Great Britain was bound to give no military assistance to the Insurgents; but at the same time the determination of the government to preserve a strict neutrality was declared. Now, the character of neutrality was, that nothing should be granted to one party which was not allowed to the other. A proclamation founded upon this principle was issued in 1817. By that proclamation his majesty's subjects were warned not to accept any commissions, or give any military aid to either of the belligerents. This principle of neutrality was strictly acted upon by the government, and though some British officers were serving by licence in the Spanish armies, it was understood that they were not to serve against the Insurgents. This understanding had been fairly acted upon, and two British officers who were about to serve in South America had been prevented. As there were, however, doubts respecting the power of applying the existing laws to persons enlisting for the Insurgents, it was requisite to come to parliament for new authority. By the present bill the acts of his late and present majesty, and the Irish acts, were repealed; and it was provided, that. persons enlisting in foreign service should on conviction be guilty, not of felony as under the former law, but of misdemeanor only. There were other provisions framed for the purpose of carrying this object into 1380 effect, but these he did not think it necessary now to describe. The supplying belligerents with warlike stores, and equipping vessels for warlike purposes, were also prohibited. With respect to this part of the bill, he had heard no objection from any quarter. The evils experienced in commerce from vessels roaming over the seas, under unknown and unacknowledged flags, had been too generally felt, to suppose that British merchants would be much dissatisfied with the regulations provided by this part of the bill. The opposition to the measure had, therefore, been chiefly confined to the clauses which are framed for the purpose of preventing the enlistment of British subjects in foreign service. In arguing this question, he should confine himself to considerations of general policy. It was not, because he undervalued the force of the particular engagements existing between this country and Spain under the treaty of 1814, that he restricted himself to this ground; but he should prove the necessity of the proposed measure totally independent of the treaty; as a permanent, not as a temporary measure; and if on general principles the bill ought to pass, their lordships would acknowledge that the existence of the treaty only rendered the obligation to adopt this measure the greater. Looking, then, to the principles and grounds of general policy, he would say, that he should scarcely look for any other definition of a state incapable of maintaining the relations of peace and amity with other powers than this, that its subjects made war at pleasure upon states with whom their government was at peace, and without any interruption from that government to their pursuits. And yet, such had been for some time the actual situation of this country. Let them put the case of subjects of this country fitting out armaments from British ports for the purpose of giving assistance to the revolted colonies of another country, with which we were at peace; could this be suffered to proceed, in direct defiance of the neutrality of the government? But put a case still stronger, of an armament fitted out from British ports for the purpose, not of assisting the revolted colonies of another country, but of making an attack upon a place in the peaceable possession of that country; and by violence seizing and taking possession of it. This case had actually happened. The 1381 termination of hostilities in Europe left unemployed in this country a very great number of military men, officers and privates, and these stimulated probably by a principle of ambition, or the meaner passion of avarice, were unfortunately ready at the call of any adventurer to engage in war, without any regard to the interests or wishes of the government. A person assuming the title of sir Gregor M'Gregor, had fitted out an expedition from the ports of this country, had embodied a force composed of British troops, and taken Porto Bello, a place in the peaceful possession of a Spanish force, His ships were British, the equipment British, and he arrived off the Spanish settlement under the British flag. If this was done with respect to Porto Bello, might not a British force in the same manner be sent against Spain itself? Was this a state of the law which ought to be permitted to continue? Was it consistent with justice? Was it not, on the contrary, sanctioning the grossest injustice? Great Britain professed neutrality, and yet this powerful assistance could be given to one of the belligerent parties and not to the other, and that party from whom the assistance was withheld was the only one to which this country was bound by treaty. Could such a state of the law be regarded as consistent with common sense, or common honesty? He would appeal to what occurred under similar circumstances between other states. In the year 1792, a treaty was concluded between Great Britain and the United States of America, in which it was stipulated that the subjects of neither power should accept commissions in the service of any prince or state at war with the other. How was this treaty executed? When the war broke out between this country and France, did the United States permit aid to be given to our enemy? No, they passed a law for securing the execution of the treaty; at first, for two years only, at the termination of which the act was made perpetual. By that act any American citizen accepting a commission or enlisting in the armies of a prince or state at war with another power, with which the United States were at peace—concerned in equipping or arming vessels for the aid of such prince or state, was declared guilty of a high misdemeanor, and made subject to fine and imprisonment. The act also provided against any augmentation of the 1382 crews of ships of war belonging to either party, which might be in the waters of the United States, and against any expedition being fitted out in favour of either belligerent; which were declared offences, subject likewise to the penalties of fine and imprisonment. In this way had the United States acted on the breaking out of the war between this country and France: let him now ask, what conduct the same government had pursued with regard to the differences between Spain and her colonies? The United States were at peace with Spain, and wished to preserve a neutrality; but ships, equipped and armed in the waters of the United States, sailed to aid the Insurgents. The government wished to stop them, but it was found that the very same sort of difficulty existed there as here. The existing law only provided against aid being given to any prince, potentate, or state; and was silent with respect to countries in the situation of the Spanish colonies. The American legislature wished to realize the neutrality they professed, and in 1S18 passed a bill extending the provisions of the act of 1792 to every description of state or power, whether regularly recognised or not. This was what had been done by the United States, and a measure of similar equality was proposed to be enacted by the present bill. It was our duty to make our neutrality real, and not to allow the one party to receive advantages denied to the other. We must either give assistance to both parties, or refuse it to both; there was no alternative but this. It was, therefore, for their lordships to consider which course they would adopt. For his part, he was prepared to contend, on the principles of general policy, that it was not the interest of this country to allow troops to enlist in the service of belligerents with whom we might happen to be at peace. It could neither be for the interest or the honour of the country thus to allow British subjects to discard their allegiance. In the whole of what he had said, their lordships would perceive that he had put aside the consideration of the existing obligations by which the country was bound to Spain—not that he did not regard those obligations as of great importance, but because he thought it sufficient to rest the whole merits of the question at issue on general policy, and the obvious interests of the country. If their lordships thought it 1383 would be a wise policy to permit enlistments for two belligerents, they would of course throw out the bill now under consideration. If, on the contrary, they concurred in the view of the subject with which he was impressed, and were of opinion that such enlistments ought not to be permitted, they would not hesitate to give this measure their support. It had been contended by some, that the liberty of entering into foreign service, in time of peace, would be advantageous, by affording British subjects a field for the display of their enterprise and spirit. It was said, "Repeal the existing laws, permit enlistment in the service of both belligerents, and then it will be seen that for one British subject who will enter into the service of his Catholic Majesty, a thousand will join the Insurgents." Now, if this were really the case, could the repeal of these laws be a measure of neutrality? Would it not be deliberately affording effectual aid to the one party, and none to the other? That could only be a measure of neutrality which carried with it no partiality to either party. Their lordships also would not fail to reflect, that the same measure which we dealt out to other countries might be returned upon ourselves. If such a principle of the law were founded in fairness and justice, let it be openly avowed and adopted; but if it rested on injustice, God forbid that any views of interest should induce this country to act upon it. Suppose this country at war with another state, or with some part of our own dominions, and France, during the contest a neutral power; what would their lordships think if France allowed troops to be enlisted in her territory, and embarked in her ports for the purpose of invading British territory, or acting against the forces of this country? What would the British merchants, who petitioned against this bill, say, if they saw expeditions sailing from French ports to attack the sources of our commerce in every quarter of the world? He was afraid we should not be much benefitted by its being left to the option of French officers to engage on either side, according to their individual opinions; nor did he expect that our navigation would be such benefitted by having the power of engaging French ships. Let it be sup-posed that we were engaged in a contest with our own colonies. That was a misfortune we had once experienced, and 1384 during that contest, many persons in this country were impressed with the opinion that the resistance of the colonies was lawful; but whatever differences of opinion prevailed respecting the questions in dispute, all parties united in condemning the interference of France. Such a law as that now contended for would, however, give the subjects of France the right of interfering, while their government remained at peace with this country. If, in the event of such an occurrence, France, who had, like ourselves, plenty of half-pay officers who would be glad to be employed, and plenty of disbanded soldiers, who would be eager also to be employed, should, whilst professing the most perfect neutrality, allow these officers and soldiers to enter into the service of our revolted colonies, and vessels for the same service to be fitted out in her ports, would it be very gratifying to us to be told by the French government, "we permit you in the same way to employ our officers, to enlist our soldiers, to fight your battles with your colonists, and to it out our vessels for the same service, but unfortunately your cause is so unpopular in France, and the cause of liberty has so much the ascendant, that not a man will enlist under your banners, nor a vessel be furnished to you by its owners"—could this for a single moment be considered as a neutrality? and yet this was what had been proposed by those who had opposed this bill, to be the conduct to be adopted on our part. The only course, he contended, of maintaining neutrality was, to prohibit the subjects of the country from entering into the service of either of the belligerents, and to do this the present bill became necessary, in order to prevent British subjects from entering into the service of the Insurgents, in the same manner as they were already prevented by law from entering into the service of his Catholic majesty without the licence of the sovereign. The volunteering for the service of foreign states, which took place under queen Elizabeth, and in the two subsequent reigns, could establish no precedent against that general policy. In the time of Elizabeth the armaments were for the defence of Protestants, The political interests of Europe were divided between Protestants and Catholics; and as every war then waged, bore more or less reference to the creeds of the contending parties, it was the policy of Eliza- 1385 beth not to discourage such of her subjects as thought proper to do so, from embarking in the quarrel of the Protestants of the continent. But did she suffer at the same time the Catholics of England or of Ireland to prepare expeditions in favour of Philip of Spain, or of any other Catholic Prince? Whatever volunteering then was permitted was in direct conformity with the principles, policy, and wishes of the queen. Let their lordships look also to the reigns of James and of Charles. The system of volunteering in time of peace was then permitted; but it was on one side only, and in accordance with what was supposed to be the policy of the state. He, however, would not say how far that policy was well or ill manifested. With respect to James, it was known that Philip of Spain had assembled an army of upwards of 30,000 men in Brussels, for the purpose of driving the elector of the Palatinate, who had married James's daughter, from his states. James sent emissaries to Brussels, to ascertain the objects of those military preparations, and to apprise Philip that if they were intended to be employed against his son-in-law, he could not remain an indifferent spectator of the contest. On that occasion, a British regiment, consisting of 2,400 men, volunteered to go to the defence of the Palatinate. War was not then absolutely declared by Philip, and it should be considered that before this regiment had volunteered for foreign service, James had expressed his feelings in favour of the cause the volunteers had espoused, and this force, although nominally composed of volunteers, was yet in a great degree supported at the public expense. A parliament was soon after called, which assigned funds for their maintenance, and gave permission to raise more troops for the promotion of this war. But would any one pretend that this was the best mode of proceeding, or that became a British monarch? This was the first public event in which James was engaged, and it became him to act with energy and firmness. The eyes of all Europe were fixed upon him, and being the first sovereign who had united England, Ireland, and Scotland, much was expected from the union of their combined strength, and it was necessary for him to make a demonstration of his power; but what did he do? He merely permitted those 2,400 men to volunteer for the defence of 1386 his son-in-law, against an army of 31,000 men, and by this act he disgraced himself in the eyes of Europe, and showed Philip plainly with what humility he would bear to be insulted. James showed that he had neither the policy of a statesman, the tactics of a soldier, the feelings of a parent, nor the honour of a gentleman; yet it was by reference to his conduct that the principle of allowing subjects thus to volunteer was sought to be defended His unhappy son, Charles, had permitted 6,000 British troops to enter the service of Gustavus Adolphus, when that warrior entered Germany, and for this permission it was secretly stipulated by Charles that Gustavus should restore his brother-in-law, the Elector, to the Palatinate. This engagement was kept secret for fear of offending the emperor. The latter, however, did not resent the conduct of Charles in permitting 6,000 British subjects to enter the service of the Swedish monarch, for fear of bringing down on him the whole force of the British empire Gustavus, however, forgot to fulfil his engagement, and Charles recalled his subjects; but as he was unwilling to have the stipulation with Gustavus made public, he did not remonstrate against the non-fulfilment of the treaty. It was impossible to speak with harshness of the errors of that unfortunate prince. Whatever they might have been, he atoned for them by his melancholy fate, but it might be permitted him to say, that the unfortunate Charles was ever too ready to be diverted from the direct course of action at the first glimpse of difficulties. Difficulties too he had to encounter, for he was engaged in the only conflict in which a British monarch need entertain fear, namely, a war against the liberties of his subjects. He might have persisted with confidence in any foreign war, if he could have been induced to throw himself upon the affections of his subjects. The noble earl then commented at some length upon the impolicy of such a mode of expressing the principles of the government, and alluded to a case which occurred in the reign of James, when private volunteering, was permitted, even contrary to the best interests of the country. At the time when the truce had expired between Spain and the United Provinces, James was endeavouring to bring to a conclusion his treaty of marriage between the Infanta and Prince 1387 Charles; and to gratify the court of Spain, he gave permission to raise 4,000 men in his dominions for the Spanish service, to be employed against the Dutch. Thus was Great Britain aiding the country it was most her interest to oppose, and depressing that which it was most her interest to assist. When thus this system was seen employed against the best interests of the country, ought it to be left to be exercised at the discretion of individuals, and not be placed in the power of the Crown, to be exercised by the advice of its responsible ministers? Would the House upon such authorities refuse their concurrence in the present bill? It might be contended, that if the volunteering was permitted to go on without the licence of his majesty, or any encouragement from the government, this country would not be responsible to Spain; but the principle in such cases he understood to be this, that every government was responsible to the states with whom it was at peace for all acts of hostility committed by its subjects. If then the Crown was responsible for the acts of its subjects, was it not consistent with every principle of the constitution to make the advisers of the Crown responsible for the existence of that force which might become the means of involving the nation in disputes with other governments? In England the people were jealous, and justly jealous, of the existence of any army without the authority of parliament; they would not even allow the employment of foreign officers in our army in time of peace; and was it consistent with that spirit of caution and zeal in the cause of liberty which dictated such vigilance, to permit an army to be raised within the country by a foreign power without the permission of parliament, without the authority of the Crown, and consequently without any of the securities that were necessary to protect the Constitution? Parliament should be cautious, lest in its anxiety to permit British subjects to fight for the liberties of others, they should adopt or recognize principles injurious to their own. Professing as it did the principles of neutrality, this country ought to act fairly and impartially by both parties. To prohibit assistance to either was the best way of preserving that impartiality, and of preventing acts which might compromise the honour, or be injurious to the interests of the nation. In the con- 1388 fidence that their lordships would agree with him, that the bill under their consideration was founded in justice, strengthened by expediency, he would now move that it be committed.
began by remarking on the great variety of motives that have been adduced for passing the bill before the House, and the great variety of grounds on which its policy was defended. If in the transactions between man and man in ordinary life we found a person who stated various and contradictory motives for a particular action of life, his conduct would lead to the suspicion, that those alleged motives were mere pretences, and that the real motive was concealed. If, in addition to the variety and inconsistency of his statements, we found that he accounted for his conduct on grounds of so romantic a nature, as indicated the absence of all our usual feelings, and a neglect of our most cherished interests, it would not be uncharitable to imagine, that he not only aimed at concealment, but that his real motive, if disclosed, was of too odious a character to be openly avowed and defended. Now, when he recollected the course pursued respecting this measure, he could not but feel that the above description applied to it. When he recollected what happened more particularly in another place, where it was introduced on the ground of correcting an anomaly in our criminal law, by persons that opposed themselves to any revision or improvement of the criminal code, he could not but suspect the alleged motive. That ground was afterwards deserted, as being found too narrow for the superstructure to be raised upon it; and then we were told that the measure was necessary to preserve the principles of neutrality. Subsequently it had been discovered that this foundation was still too confined, and now the House was called upon to adopt the measure before it, because the country was pledged to it by the modification introduced into our practice by the stipulation of a particular treaty, which was completely at variance with the argument in its favour drawn from the principles of neutrality. Their lordships would observe, that this last position was inconsistent with the argument of neutrality, for if the article of the treaty bore the interpretation which the noble earl had given, it was not to support our neutrality between the contending parties, but to give one a decided 1389 advantage above the other that the measure was introduced. It had been said that the interests of this country were on the opposite side of the question, and the noble earl himself seemed to maintain the same opinion in his reasonings from analogy; but if it was against the commercial interests of England that the bill should pass, it was still more decidedly against the feelings of Englishmen. But it was maintained that the measure ought to be supported as enforcing the principles of justice and preserving the national honour, He would afterwards examine the nature and force of this plea; in the mean time it was sufficient to mention it, to show that it was at variance with the other grounds on which the bill had been defended, and contained a principle of so unusual a kind, as rendered the sincerity of those who advanced it doubtful. If any part of the measure was reasonable and just, he was willing to adopt it, though he objected to the unreasonable time at which it was brought forward. In this temper he concurred in those clauses of the bill which repealed the statutes of the 9th and 29th of Geo. 2nd. He did so, not because those acts were found oppressive in practice, or because they were in any way founded on principles like those of the present measure. There appeared nothing in their enactments or in their history to show that they had been passed to preserve our neutrality, or that their operation had been found necessary for that purpose. He believed there was great truth in the statement of those who accounted for their enactment from a fear of the Pretender, and a desire to prevent British subjects from being embodied under his standard. The latter of those acts, it should likewise be remembered, was passed in the view of a war. The noble earl had, indeed, mentioned one instance in which they had been executed, unconnected with the Pretender, and that was in the case of some persons enlisting into the Prussian service. This only showed that as the acts were passed when war was on the point of breaking out, that their object was, to prevent our subjects from joining a foreign force when their services were required at home. Such was the object of the acts which contained nothing from beginning to end which could be interpreted into the recognition of a right in foreign countries to demand from us the adoption of such a law. He came 1390 now to the question, whether the preservation of the principles of neutrality required the enactment of the present measure? And here he must say, that he had heard some part of the speech of the noble earl opposite that related to that part of the subject with no little surprise. Who would have thought that the noble lord would have had recourse to the legislation of the United States of America for authority on the law of nations, for an exposition of the principles of neutrality? Nay, who would have thought that he would have set aside all former precedents and condemned all former legislation at home, to exalt this hew authority? Not satisfied with imputing cowardice and baseness to James the 1st, he seemed, at least it was a consequence of his arguments, to impute want of faith to all the kings of England in their transactions with other governments, and a total inaptitude to maintain the relations of peace and amity. It was however a misfortune, so far as the fate of the argument was concerned, that those monarchs, whether they consulted German jurists or took their knowledge from any other source, did actually maintain the relations of peace and amity with more success, and during longer periods, than the politicians of later times. Not only James 1st, however, who was censured by the noble earl for his pacific temper; and Charles 1st, so strangely blamed and eulogized in the same breath; but all the monarchs of England, up to the year 1736, suffered in comparison with this new oracle; and yet they had contrived, without any law of neutrality, to maintain peace longer than those who had succeeded them. He would venture by the way to suggest to the noble earl, that the love of peace manifested by James 1st, was more advantageous to his people than the opposite disposition that of late had guided the councils of this country. In speaking of the policy of Charles 1st, the noble earl professed a desire to use no harsh expression towards that unfortunate monarch, and yet could there be a censure more severe—could there be a statement more destructive of his character than what had fallen from the noble earl, who allowed that he was not sincere in his conduct; that he privately opposed those whom he publicly professed to favour; that he made promises of neutrality, and broke them to suit his convenience? The noble earl's 1391 profession of forbearance and lenity assorted ill with his enumeration of facts. He wished not to speak harshly of the unfortunate monarch," while with the same breath he mentioned that he made war on his own subjects, and deceived his allies; that he was insincere, in his foreign politics, and a tyrant and a despot at home. All this was called not speaking harshly of the monarch whose conduct was alluded to. As an argument in favour of the present bill, the noble lord had said, that if it was not passed we could not preserve our neutrality. Now, he (lord Holland) would, on the contrary, maintain, that the existing laws were sufficient for that purpose. He would even run the hazard of standing up for the prerogative in this case against the noble earl. And in doing so, he would speak not from the dicta of German jurists (whose authority, by the way, he was far from treating with disrespect), but on the experience of six centuries. There was an evident fallacy that ran through the whole of the noble earl's reasoning, namely, that the act of individuals was the act of the government. The noble earl had asked in one part of his argument if foreigners who joined a belligerent had belligerent rights. The reply was easy—they had no rights but those of the party whom they assisted. The noble earl had stated, that there was a person who called himself sir Gregor Macgregor, who had under British colours taken a Spanish town. Now, with regard to this person's title, he might assume any one he chose, and if he acted under the British flag, this bill would not prevent him, as it merely affected those enlisting in foreign service. He (lord Holland) would agree that the government ought not to encourage such enterprises. He agreed, that we ought not to make war on either of the parties; and he admitted that impartiality constituted neutrality. A sovereign might be called upon by one belligerent party with whom he was in alliance, to prevent his subjects from entering into the service of its enemy, so as to be employed against it. The sovereign might issue his proclamation, prohibiting his subjects from enlisting; and if they did so after that proclamation, they would be guilty of a high misdemeanor, and might be punished accordingly. But this was all that a belligerent state could ask. It could not demand from the sovereign a change in the municipal laws of his dominions, or a modifica- 1392 tion of them, to suit its convenience. The noble earl had said, "Look to the United States, and see what they have done;" but he had not adverted to the difference between the power of the executive in this country and the American union. The president of the United States had not the power like the sovereign of England, of making peace and war; and therefore, as the executive had not the right of enforcing peace, a foreign state had the right of demanding a law from the legislature to prevent war. The example of the United States was therefore no precedent for us, where the prerogative already possessed the right which a particular law was there requisite to confer. But though the bill under the consideration of the House was, in his opinion, inexpedient and impolitic, and though so far from serving the purpose of neutrality, it afforded great advantages to one side; he did not mean to say that it was a bill which their lordships had not the power to pass. They had the power. All that he contended for was, that the question was a question of expediency, and not a point of duty arising out of our situation as neutrals and our relations with foreign states. The noble earl, in recurring to ancient usages, had found out that the state of things was so different when the chief instances of enlisting into foreign service took place, that the precedent could not apply at present; he had found out that the kings of this country were obliged to support the Protestant cause against Catholic sovereigns, however much they professed to be at peace with those sovereigns. He had even appeared to maintain, that what would have been a breach of neutrality if done by individuals, was no such breach when connived at or authorized by the government. In pursuing his argument, he had made the strange admission, an admission not very creditable to our ally, that though the acts of George 2nd were repealed, Spain would not be able to get a man, while numbers would continue to flock to the standard of the Independents. It thus appeared that if we admitted both parties to equal rights, we could have no neutrality. It-was now stated that we had many of our subjects in the ranks of the South Americans, and it was evident therefore that the present measure would operate partially against them. Thus we must have partiality on one side or the other; but the partiality of the former case re- 1393 sulted from our ancient law and the feelings of individuals; while, in the latter, it would result from the proposed enactment, and the unwise counsels of ministers. He came now to make an observation or two on the pretence stated for the licence to enter foreign service, in the times immediately succeeding the Reformation. The noble earl said, that such licence was given to support the Protestant interest. Did the noble earl, who was an enemy of the Catholics, and who believed that one of their tenets was, to keep no faith with heretics, not see that the tendency of his observations was, to affix a similar stigma on the Protestants, and to admit that the Protestants kept no faith with Catholics? He had stated, that through these means the balance of power was preserved. Was there formerly a balance of power, and was there none now, after all our boasted successes, after expending so much blood and treasure, and after imposing taxes that almost ground the people to dust? But he did not see to what the observation about the Protestants tended. Reverting to the principle of neutrality, he contended that the opinions of the best jurists were all in favour of that system which the noble earl had called a new one; the example of all nations was on the same side. The noble earl had quoted James the 1st, but he had omitted to notice the treaty of 1604, by which the king engaged not to grant any assistance to the enemies of Spain. When it was objected on the part of Spain that the English did afford assistance to their enemies, and application was made at the same time for aid, the answer of the government was, that the king would not assist either party. It contained none of the extravagant rant and vague jargon about Protestants, by which the present measure was attempted to be justified, nor did the statesmen of that period deem it expedient to alter the law. A similar reply was made in defence of the Dutch subjects, who entered the service of the bishop of Munster. But those might be reckoned old precedents. He would therefore direct the noble earl's view to what took place so lately as 1791 Did no persons then from this country enter into foreign service? He would read an extract from the Annual Register of that year, which was, he allowed, an anonymous work, but was reported to be written under the superintendance of Mr. Burke, and by a friend of his own (Dr. Lawrence), not much inferior in political 1394 knowledge to himself. The passage he would quote referred to the assistance lent to the Low Countries; and said, that the spirit of enterprise, which was at all times common, had led a number of English gentlemen thither to assist their neighbours: and as the court of Great Britain and the ministry were not supposed to be adverse to the project, they were allowed to go unmolested. They were received with open arms, and were, for the most part, quickly appointed to commands, and as many of them were possessed of considerable influence in their respective counties, they were enabled to raise a body of men under the title of the British Legion, which was altogether composed of English and Irish. As he spoke solely for the cause of truth, he did not mean to urge any thing beyond its just value; he did not mean to say that this was a great dictum upon the law of nations, but it showed how the doctrine of enlistments in foreign service was received by wise and able men formerly. He might even allude to the manner in which the bill now before the House would affect Spain itself, where there were formerly whole regiments of English subjects. He was afraid that he had said too much on the subject of usage and authority. He would now go on to state the dangers that might result from this new doctrine of neutrality. If what the noble earl proposed was one of the duties of neutrality, he had no hesitation in stating, that it was a duty which must be attended with great inconvenience to all the free countries in the world. If it was a duty which we took upon ourselves to prevent individuals from engaging in any foreign service, nations at war with whom we had concluded treaties of amity, might demand the execution of that duty. They might come and say, "You have signed a treaty with us, you have issued a proclamation to enforce the stipulations of that treaty; this proclamation has not been effectual, and lord Castlereagh told us at Congress, that nothing else could be done without a law; but we find that no law has been passed, that troops go out to join our enemies, and that all your promises have been falsified. We have therefore a right to call upon you to change your laws, to fulfil your treaties, and to make your promises valid." As soon as the present law should be passed, and found to be ineffectual, the king of Spain might come forward, backed by the Amphictionic council of 1395 Europe, the assembled Congress, and say, "I find you have not yet done enough, and you must do more to secure the fulfilment of your engagements." Ministers might then find, that to make the laws effectual a police should be established, new and extraordinary powers should be granted to the executive, emigration should be prohibited, and the state converted into a prison for the confinement of its subjects (as it had been expressed by one of the German jurists), "Ubi civitas est career." But even this might not be sufficient: some persons might even still escape to join the enemies of Spain; and the character of its monarch might be abused in England. Pressing on the yielding disposition of our government, the monarch of Spain might interfere with the liberty of the press, telling them, "You are too free; you have a press which does not spare even kings: while your present liberty exists, you cannot prevent that abuse, and you must therefore abolish your liberty, as the only means of preserving your neutrality." This, it was true, might sound so extravagantly, that no minister in this country would listen to it, but when they had sanctioned a principle against themselves, by what argument could they refuse this further concession? He was the more opposed to the present bill, when he considered that it was only one of a multitude of measures which seemed to be in contemplation; and that it went pari jure with another obnoxious act, the Alien act. He would not proceed one step further in such a policy. As an Englishman, as a friend to liberty all over the world, as a friend to the happy constitution under which we lived, he could not permit the question to pass without entering his protest against it. It would be superfluous to answer the argument for agreeing to the present bill, derived from the existence of our treaty with Spain. The words of the treaty, according to the assertion of the foreign secretary of state himself, merely referred to arms and warlike stores; and it would be a curious description of a soldier to bring him under the description of arms and warlike stores. It was well known at Congress, that that treaty had no reference to enlistment, and that its deficiency was complained of to the British minister there These arguments were not, he admitted, sufficient to make us reject the bill. We might improve our laws, although the 1396 change ought not to be dictated by foreigners. The question was one merely of expediency and policy, which we were at perfect liberty to support or oppose, on the sole ground of our own interest. He would therefore inquire what favour we had received from Spain for such a boon, and what duty we owed her in return? He would say nothing offensive of the present sovereign of that country; he would not discuss his character, nor speak of the atrocious evils of his government. He could consider Ferdinand 7th only with reference to his relations to this country; but if we were called upon to vary from our present state of neutrality in favour of Ferdinand 7th, then he must consider the character of Ferdinand 7th in order to ascertain whether he was entitled to such a favour. He would not enter into a history of every incident in Ferdinand's life, which indicated his character; it would be sufficient to allude to a few of his public acts. The first act of his public life which merited attention was, his treaty with Napoleon Buonaparté. In that treaty he engaged to drive the English troops out of the Peninsula, and this he engaged to do in co-operation with the French army. In that treaty he favoured the commerce of France over the commerce of England. That treaty Ferdinand never rejected, as not binding upon him. It had been rejected only by the Cortes, by the men whom Ferdinand had since thrown into dungeons, and perhaps for that very reason. By no public act had Ferdinand ever disclaimed that treaty. But it was now pretended, that the treaty of 1814 wiped all this away. Well, he would ask any noble lord upon the other side, he would ask any noble lord in office, whether, with respect to the commercial interests of this country, the king of Spain had not violated every friendly intention expressed in the treaty of 1814. In the year 1796 there was a duty of 15 per cent upon English goods imported into Spain; it was now 90 per cent. In this, too, the superior favour to France was manifest, for the duty upon French goods, which in 1796 was 15 per cent. was now only 30 per cent. He knew that it was alleged that every idea of renewing the family compact had been renounced; but be also knew that there was at this moment no stipulation to prevent the renewal of it, or to prevent Spain from acting upon it. He could, therefore, see nothing to entitle Ferdinand 7th to what 1397 was a mere matter of favour. He saw nothing in the character or conduct of Ferdinand to entitle him to a sacrifice of the interests, and what was stronger, of the feelings of the people of Great Britain. He wished next to advert to the effects of this measure upon the half-pay officers. If he had, as much as the noble earl, encouraged the military spirit which had prevailed so strikingly in this country lately, not, he hoped to the danger of its peace and stability; if he had encouraged this military ardour so much as the noble earl, he would not have spoken so lightly upon that subject as the noble earl had done. It was, indeed, manifest to Europe, to the world, and to this country, how much we now suffered from the encouragement of that military spirit. We had thrown off the mask, and we heard no more of the prosperous situation of the country notwithstanding the war. We heard, it was true, in the speech from the throne, and in the address of that House to the throne, that the country was in a state of increasing prosperity; but it was now admitted by all, that the country was in a most distressed and most difficult situation. South America afforded an opening for our commerce, and gave suitable employment to our distressed soldiers and half-pay officers. Surely the present was by no means the best period for adopting such a measure, when our labourers were out of employment, and our mechanics and manufacturing classes placed in the most painful circumstances. Of those evils some degree of alleviation had begun to be felt in consequence of our intercourse with South America; but the effect of this bill would be to discountenance the cause of the Spanish colonies, and to break through the friendly relation in which we now stood to them. Let it be recollected, too, that this bill was calculated to counteract the natural disposition of this country to preserve a friendly intercourse with America, and even to emigrate to its provinces. The noble earl had therefore entirely misunderstood, he would not use a stronger term—but the noble earl had entirely misapprehended and misunderstood this subject, when he said that it arose out of the state of this country. On the contrary, he would say, that this was purely a question of expediency, and that those who voted for it, were, therefore, bound to show that the interests of this country required that we should favour Ferdinand more than South America.
The Earl of Westmorland
contended; that this law was required, notwithstanding the common law authorized, the punishment of enlistments for foreign service, as the object of this bill was to prevent the commission of the offence, which the common law could not do; The first position he should take was, that this question had nothing to do with the king of Spain. If he had acted unfairly in showing more favour to other countries, the noble earl trusted that this country was capable of manifesting its resentment; but he trusted it had had too much honour and feeling to manifest its resentment by a breach of neutrality. We had nothing to do with the consideration of liberty or slavery, superstition or independence, on the part of either of the belligerents. France, at the time of her revolution, had offered assistance to all who were disposed to resist their oppressors, and had, by doing so, raised the powers and opinions of all Europe against her. With respect to our commercial interests, he would contend, in the first place, that a bill to prevent engaging in quarrels was not likely to injure commerce. It was a new doctrine, that, by engaging in wars and quarrels, we should promote commerce. But he had special arguments to prove that this bill would promote our commerce. He had in his possession a petition from the merchants and inhabitants of Brest to their government, complaining of the interruption to their commerce occasioned by the English cruisers in the service of the South Americans. Those, too, who had the best means of information upon the subject, gave it as their opinion, that thousands and thousands had been thrown out of employment in consequence of the interruption given to commerce by the English in the service of the Insurgents. He would next reply to the argument respecting the half-pay officers. He was not one of those who imputed every case of distress and want of employment to an over-population. He, for one, believed the strength of a country to be in its inhabitants. The bill was intended to protect our population from wanton and useless diminution. But those brave men, who had fought our battles, were more entitled to our protection from this destructive warfare than other classes of persons. Let any person look to the treatment they received in South America, the sufferings and miseries those 1399 experienced who embarked in the cause of the Insurgents, and say whether it would not be proper on the part of the legislature to prevent others from proceeding in the same career. The object of this measure was, to repeal the 9th and 29th of George 2nd, and enable government to interrupt persons in their course, who were about to commit the offence contemplated in those acts. The offence was felony by the law as it stood at present, but the law could not operate until the offenders were beyond its reach. Ought the matter to be left in that situation? The noble lord said, "repeal the statutes, and leave the defence to be punished by common law." This might be sufficient with respect to powers with which we were simply at peace; but it should be recollected, that with respect to Spain, we were not only amicus simpliciter, but also amicus confederatus. Upon this ground, that we were bound by treaty, it was, that the government of the country, and not the king of Spain, called upon the legislature to pass this bill. If the king of Spain were to violate his part of the treaty, and to plead in excuse that the laws of Spain would not allow him to act otherwise, we should say, "We have nothing to do with your laws; you have made engagements with us, and you must conform your laws to those engagements." So the king of Spain was now entitled to say to us. The noble lord must suppose the king of Spain to be a better jurist than probably any foreign monarch was, if he imagined that he knew our laws so well as to be acquainted with the quibble, which would permit us to assist the insurgents, but not Spain. Upon this quibble their lordships would never act. The treaty with Spain had now lain five years on their table, and were they on a quibble to violate that treaty? As well might the executive government of Spain hereafter say she could not compel her subjects to accede to the abolition of the slave trade, notwithstanding her stipulation on that subject. It might be asked, why this interference did not sooner take place? In the first place, it had not been supposed that the raising of troops for the Insurgents would go to any extent in this country, and it had therefore been thought not worth while to interfere, especially as there was such a variety of opinions among jurists on the subject. In the next place, it had been expected that our mediation between Spam and the Colonies 1400 might be successful, and render such a measure unnecessary. In the third place, the proclamation was expected to have its proper -effect. But when all these expectations had failed, and when whole armies proceeded from this country, and made war, where before there had been none, it was indispensable to pass such a law as was now under consideration. Upon these grounds the bill was entitled to the sanction of their lordships.
The Marquis of Lansdowne
said, that in considering this bill in its object and in its details, he could not refrain from pronouncing it to be a measure not warranted by either the policy or the expediency of this country. He was persuaded that he should not be contradicted when he maintained that this bill was introduced not upon the ground of general policy, but in consequence of a specific application from the court of Spain, and that the whole light of general policy, had burst upon his majesty's ministers in consequence of this application. The question for the consideration of their lordships, therefore, was, 1st, the right of that power to make such a demand, and, then, the expediency, in the present circumstances of this country, of complying with that demand. Their lordships were called upon, first, to inquire, whether the demand ought to be acceded to upon any general principle of the law of nations, upon the ground of the usage of this country, or upon the stipulation of any particular treaty; and next, if the demand ought not to be acceded to on any of those grounds, to consider how far, in the present condition of the world, there existed any expediency to induce their lordships to depart from the undoubted law, and still more the feeling of this country for more than a century back. He might, if he referred to German jurists, incur the censure of criticism from the noble earl who had spoken first in this debate. All the writers upon this subject had been proscribed by the noble earl; and all the sovereigns of England who had acted upon the principles of those writers, the noble earl would not forsooth admit as any authority upon this question. He would not refer to many authorities; he would only allude to one who might stand in lieu of any other, because he did not so much give any original opinion as reduce the opinions and doctrines of others into a sort of compendium. The writer to 1401 which he referred was Martens. Martens suited, that it was consistent with perfect neutrality to give every assistance to either of the belligerents, except warlike expeditions. Would the noble lords, on the other side, say, that the efforts of individuals in the South American cause could be termed warlike expeditions? This could not be pretended, and nothing else, according to Martens, was to be refused. This writer proceeded to state, what he (the Marquis of Lansdowne) would have hesitated to say, that "every state has a right to give liberty of raising, troops in its dominions, and marching them through the country, and may grant to one state what it refuses to another, in war and in peace, without infringing its neutrality." This reference he made, not for the purpose of showing to their lordships what the law was upon this subject, but only to meet what the noble earl had stated. The noble earl had represented this as a novel and unheard-of doctrine, but he had stated not one single exception to it. He would now advert to the circumstances to which the noble earl had alluded, and which he had selected as if for the purpose of inducing their lordships to abandon the ground on which questions of this sort had always been placed. The noble earl had stated, that queen Elizabeth was the first who had allowed subjects to engage in a war, with respect to which the government maintained a neutrality. The notions of the noble earl on this point were rather surprising, because, when referring to queen Elizabeth, who allowed her subjects to engage in the wars of neutral powers, "No," said the noble earl, "she did not allow her subjects to fight for the two belligerents, she allowed them to fight on one side only." His argument was, that the queen never allowed Protestants to serve Catholics, but Protestants only. But if queen Elizabeth was able to enforce this policy, whence arose the inefficacy of the common law, on which the noble earl had founded another of his arguments? The common law was said to be good for nothing, yet she had exerted that good for nothing power so successfully as to confine the assistance of her subjects to Protestants only. James 1st had been a great coward, it seemed, but the noble earl would admit that he had been no bad jurist. James 1st then, being a great coward, according to the noble earl, had, 1402 for the purpose of not involving himself, permitted 2,800 soldiers to be raised for the service of a foreign power. If the common law did not admit of this, why might he not as well have proceeded to war at once? That king piqued himself on being a jurist; it was the fashion of his age, and if the law of nations then interdicted his subjects from taking part in the wars; of other states, he (the marquis of L.) was rather inclined to think James would never, have' suffered those volunteers to have embarked for the continent. The fact was, however, that he had given permission, or rather encouragement, for that was the noble earl's statement, to 2,800 men to go abroad, in the service of one of the belligerents, while he, protected by the law of nations, enjoyed peace at home! All history would bear him out in asserting, that this was the first attempt made to establish the principle that the subjects off one state' could not privately and individually assist, those of another where their respective potentates were not at war. He would venture to declare, that for the last four centuries, and down to 1792, when the Netherlands resisted Joseph 2nd, there never was a period in which British subjects were not engaged in giving this succour, as individuals, to other states; and he defied any man to show him in what instance any government had interfered, to prevent them in the manner now proposed. The active interference of British subjects in the service of foreign states, was therefore not inconsistent with the doctrines of neutrality. But their lordships had been told, that the government of Spain was entitled to particular rights by the treaty of 1814, which had been so often alluded to. Now, what was the conduct of ministers on this subject, or what did they mean when they acceded to that treaty? It would hardly be contended that ministers, being aware that they had not the power of executing the treaty towards Old Spain, had, nevertheless, engaged to perform certain acts; but if that were the case, what justification could they offer to parliament for not coming forward sooner and saying, that it was necessary to adopt a particular law? Not a hint on this subject had been given; it had never been whispered that an alteration of the ancient policy of this country was necessary; but at the end of four years they came and stated, "Now we have to tell 1403 you, that four years ago we entered into a treaty with Spain, and the effect of that treaty is, that you must alter your existing laws." Such was the language which his majesty's ministers now employed; but he would observe, that Spain must be supposed to have entered into that treaty with a perfect knowledge of the existing Jaws; and if they were not acquainted with those laws, it was a breach of faith on the part of ministers not to inform her what they were. The plain inference then was, that neither Spain nor ministers had at the time any idea of asking or conceding this alteration in the existing laws of the land; he was therefore of opinion the stipulation for this alteration must have been made or understood at a subsequent period, and not agreed upon in the sense in which it was now contended for at the time by the contracting parties. This was the only way in which he could account for the silence of government upon it for four years. There was another circumstance in that treaty which showed how little it could justify a particular departure from the laws of this country. If their lordships looked to the treaties of commerce between Great Britain and France, they would find, that the subjects of the two contracting parties were interdicted from letters of marque. So that, according to the doctrines of the noble lord, this country, not having the advantage of a treaty of commerce with Spain, was supposed to have incurred the obligation which only a treaty of commerce could have imposed. The difficulties which were attached to the question bore a little hard upon the independent states of America. Under this law, if their lordships should consent to pass it, there would be a complete prohibition of arms and ammunition to the independents; and yet, at that very moment, arms were conveying to Old Spain. It must be well known, for the public prints had openly stated it, that the expedition from Cadiz had been delayed for the purpose of receiving arms from this country. So much for the strict impartiality and justice of his majesty's ministers. At that very moment, they were furnishing materials for the completion of the Cadiz expedition [No, no, from lord Harrowby]. He was happy that the noble lord contradicted this. It had been publicly stated in the newspapers, and hitherto it had not been denied. He should be glad if the noble 1404 lord could say, that no supply would be sent to Spain. But if he read this act rightly, the noble lord would find it difficult to prove that arms may not be sent. It was not because arms had not been sent, that they might not be sent to Spain. He had no hesitation in declaring, that this law would give to the government of Old Spain that assistance which ministers, professing the spirit of strict neutrality, were anxious to withhold from the colonies. Their lordships were now to consider upon what principle of expediency they were called upon to adopt the law of preventing any assistance from being rendered to the individuals of South America for establishing their independence. If they did not, as he thought they ought not, give way to any feelings which would tempt them to do an act of injustice, he asked, at least, that they would not allow themselves to be influenced by any principle, by any new, romantic, or Quixotic sentiment, to abstain from doing that which, consistently with the law of the country, might be done. Much had been said, both now and on former occasions, no matter where, with respect to our half-pay officers; and he now called upon their lordships not to forget the number and amount of those officers, who, after having fought the battles of their country, had become the victims of peace, and were driven to the means of obtaining that subsistence which our own policy had forced them to seek. It was well to describe in rhetorical periods, the blessings and comforts of domestic life; it sounded well to say that those who had been employed in war should now turn their swords into ploughshares, and devote the remainder of their days, if peace continued, to the cultivation of the earth; but thinking, as he did, that all war was an evil, and that peace was a blessing, he must say, that when a large body of men had devoted their lives to the service of their country, and were now unable to support themselves in their former rank, their lordships were bound to consider the situation in which those persons were placed, and not to check them in the honourable career and employment of their, future lives. They were at least so far entitled to the consideration of parliament, that they ought riot to be debarred from any employment in which the circumstances of the world might allow them to employ themselves. But there 1405 was still another view of this subject. He was also of opinion that the commercial interests of the country had a right to call upon their lordships not to dry up those new channels of enterprise which now opened to their view. Government, in the present languishing state of commerce, should not, upon light grounds, or through external influence, call upon parliament to enact a measure which would have the effect of blocking up from British industry and enterprise a channel of trade in the present and prospective stale of the country, of such important value to its best interests. This was a great and important consideration, and which ought not to be treated lightly. Indeed, when he looked at this question in all its various points, he could wish that their lordships would place themselves fairly before the object, and consider maturely how these transactions would appear in the eyes of posterity. He firmly believed that there was no man in that House who would state, that the independent colonies of South America would return to the government of Old Spain: attached as they were to liberty and independence, not only from the natural feelings of mankind, but also from the very sacrifices of blood and money which they were making to obtain those blessings, was there any man who could assert that these states, in the growth and prospect of independence and liberty, possessing within themselves great fertility of soil, great extent of territory, a happy climate, and noble rivers, enabling the inhabitants to turn those advantages to the highest account, in short, commanding all the resources on which the edifice of their future greatness might be founded— could any man believe, that these states, in all the freshness and vigour of youth, would return under the tyrannical sway of their ancient government?—that they would sink into the arms of that government from which they had already suffered so much, which had shown that it was impotent for their protection, and which could make no other use of them, if she should recover them, than selling them to the highest bidder in Europe or America? After the long, bloody, and horrible war shall have ended, and the destiny of those states shall be fulfilled, it would be painful to find that England had only connected herself with these transactions by bills of pains and penalties 1406 against those subjects who had taken a part in that struggle in the cause of liberty and independence, and that, not' content with the existing prerogative of the Crown—not content with dealing out-a fair measure of justice between the' contending parties, parliament had thought fit to invoke the aid of common informers against those persons who devoted their abilities and energies to the service of the South Americans. Every man who had a heart to feel must desire that the independence of South America might be established. The love of liberty which prevailed in this country must create a disgust of tyranny wherever it existed. We had long enjoyed the blessings of independence, and he trusted that the time was not far distant when they would be experienced in that quarter of the globe.Nosque ubi primus equis Oriens afflavit anhelis,Illic sera rubens accendit lumina vesper.This country had been the birth-place of liberty, and it should not grudge to see it take its residence in another hemisphere. He agreed with his noble friend that the bill ought to be divided into two parts, he thought that by repealing the occasional statutes so often alluded to, a perfect measure of neutrality would be dealt out to Old Spain; but he would not consent to that part of the bill which prohibited our subjects from enlisting in the service of any government whatever.
§ The Earl of Harrowby
said, that he felt great reluctance in troubling their lordships by citing authors to whom they were not disposed to listen with any satisfaction; but he thought that they could not do better than consult the opinions of men who, sitting in their closets, had examined the history of the world, and collected the sense of preceding writers. He had looked into many of those writers, and one in particular, an author of the highest authority, appeared to him not to have expressed himself in the terms which the noble lord opposite had stated. That writer certainty said, that the leaning of his own mind was, that persons might engage in foreign service; but he limited this by adding, that it must be considered whether they were or were not allowed by their own government to engage in that service; and he concluded by saying, that every person would judge for himself upon the arguments adduced; and yet this was the 1407 author who was relied upon by the noble lord opposite, as if he had said that in all cases the subjects of one country might engage in the service of another. Grotius, Vattel, and Puffendorff all maintained that it was a specially enjoined duty on the part of neutrals not to interfere in the contentions of powers at variance with each other, except for the purposes of intermediatory adjustment. These writers went so far as to state, that, even if the cause of one friendly power were more just than that of the power engaged with it, a neutral had still no right to aid the party who had even the juster cause against the other, or to erect itself up into a standard for adjusting the differences of independent nations. It was equally clear, according to Grotius, that a neutral had no right to give aid to each of the contending parties, for that would be to exterminate both.— With respect to the assistance given to foreign powers by James 1st and Charles 1st, that assistance furnished no precedent on the present occasion; for in both the former cases, the volunteers who went forth were armed with the licence of their sovereign. They were volunteers levied by the consent and with the authority of the Crown, so far as it respected the operation of their own laws upon them, though he was ready to admit, that if the parties against whom they marched, had called upon their sovereign to withdraw them, the latter must have immediately complied, or a rupture would have been the inevitable consequence. The noble marquis had found fault with government for not having recourse to this measure before, and had contended that such a measure would not have been had recourse to, but for the demand of the Spanish government. He was not aware of any such demand. That the Spanish government were anxious from the first, that the government of this country should enforce on the part of its subjects a strict neutrality in this contest he was ready to allow. It was also perfectly true, the applications from that state had increased in number and earnestness as the evil increased.—But it was this very circumstance of the evil's growing higher, that compelled the government of this country, in vindication of their own and the national honour in the face of Europe, to bring forward the present measure. Government did not interfere as long as there was no open or 1408 avowed support given to the Insurgents. They did not notice one or two ships sent out; but when whole expeditions were prepared, when the proclamation of his majesty had been found to have no effect in restraining them, when no hope remained of any adjustment of the differences between Spain and her colonies, then, he contended, it became the duty of the British government to interfere, and prevent what would, if unrestrained, amount to a direct breach of neutrality on their part. We were, from the nature of the acts already in force, bound to legislate on this subject; for it was known to their lordships, that some of those acts made that a felony which, by the present bill, would be only considered a misdemeanor. The object of the bill was not, as had been stated,' to give a preponderance to one of the belligerent powers, but to prevent (which was the essence of neutrality) any assistance being given to either. The acts to which he had alluded had left the question of neutrality in some respects doubtful; but were we, for the omission of a few words in an act of parliament, to sanction a system which would be a direct breach of the treaty we had made, and of that neutrality which even without a treaty the law of nations called upon us to observe? As to the government having been induced to adopt the present measure in consequence of an appeal from other powers, he should observe, that no appeal against a right would be attended to. There were not instances wanting, and he could show them, where an appeal had been made against the dearest of our rights—the liberty of the press, and that too by the most powerful state in Europe; but the appeal would not be listened to; and our government would not for a moment attend to an application which went to infringe what it held to be so sacred and dear to the country. But without any appeal, it would not be deterred from an act of justice to two contending parties—the only justice which was required at our hands—that of observing the most strict neutrality between each. The American government, having passed a law to a similar effect in 1795, found that in that law there was precisely the same omission that there was in ours, and that omission had been lately rectified. Their lordships were not called on to change the law of the land, but to make it effectual. By whom 1409 were they called on to make it effectual? Spain was here strong in her very weakness. We could not be deterred from doing justice in this case, lest it might be supposed we yielded to menace that justice which we owed not to Spain more than to our own honour. Great stress had been laid by the noble marquis on the immense quantities of British arms said to have been exported from this country to Spain. He held in his hand an account of the number of fire arms of all descriptions exported to Spain during the last four years. In 1816 the number was 7; in 1817, 12; in 1818, 226. And the whole number to the 5th of January 1819, the latest period to which the same could be made up, amounted only to 1403. The value of the arms of every description, including swords, cutlasses, &c. was, for 1815, 5,200l.; 1816, 996l.; 1817, 3,846l.; 1818, 4,305l. Such therefore was the limited extent of the exportation of arms from this country to Spain, that in four years its value fell short of 15,000l. In this case, as in the other, government did not think the evil had arisen to such a height as to call for their interference. But they were perfectly ready, if the evil should be thought of a magnitude to demand interference, to submit to parliament a measure for the prohibition of the exportation of arms to Old Spain. Hitherto they had not thought the exportation of arms to Spain of such magnitude or importance as to call for interference. But they had prohibited the exportation of arms to Spain in South America, where it was of more importance to have arms, as it was there they were to be used. By the proclamation which was issued on this subject, the exportation of all military stores was prohibited to either of the contending parties. In that respect government showed the most perfect impartiality; and if any thing was omitted, it was the wish of government to make good the omission, in order to prevent any imputation whatever from being cast on them of favouring one party more than another. But it had been contended that the present measure, though it bore on the face of it a show of impartiality, was yet the very reverse of impartial, as it deprived the Insurgents of all the advantages they enjoyed under the existing state of things. But it was hardly possible there could be a violation of neutrality which was not more beneficial to one party than to another. Let 1410 their lordships recollect the manner in which we had ourselves acted towards France, when we stood in the same relation towards our American colonies, in which Spain now stood towards hers, and asked in what light the world would be disposed to view our prescribing to other nations a course which we refused to follow ourselves? We then went upon the principle qui facit per alium facit per se, and upon that principle we ought now to act. We could not in justice suffer our own subjects to adopt a line which we had resisted in the subjects of another state. How should we be disposed to view the application of the same principle towards ourselves in any disturbances in our present colonies, which we were now contending for in the case of the Spanish colonies? Supposing in Jamaica, or any other of our West India colonies, scenes like those which took place in St. Domingo were going on, and supposing also that the government of St. Domingo, professing also the most perfect neutrality between us and the Insurgents in Jamaica, should allow either party to levy troops in its territory, and a negro army should in consequence be allowed to leave that island to take part in favour of the revolted negroes of Jamaica, what language should we hold to the government of St. Domingo? Cases might easily be multiplied to show that the application of this doctrine would be fatal to the best interests of the country. With respect to the argument, that it would be cruel to our half-pay officers and soldiers, reduced by the peace to inactivity, to prevent them from embarking in this cause; before they said this was cruel, they ought first to consider the nature of the service which they were preventing them from entering into. We were not very accurately informed of what was now passing in that country, but from what he had heard of the correspondence of the officers at present there, he believed it would not be cruelty, but mercy, to give them an opportunity of returning from thence. All their letters were full of the wretched manner in which they were fed, clothed and treated. Indeed we knew enough of the characteristic jealousy of the old Spaniards to warrant us in supposing that in another hemisphere their feelings towards strangers would assume a different character. But even supposing our officers and soldiers treated as well as 1411 they could wish, it was to be recollected that the warfare in which they were engaged was a warfare of extermination. He had seen a proclamation to which the name of "Bolivar the Deliverer" was signed, justifying in very eloquent and powerful language the massacre of eight hundred Spaniards in cold blood, on the ground that this measure, frightful as it was, was merely a retaliation for similar acts of as horrid character. It was the duty of the legislature in mercy to our officers and soldiers to preserve them from scenes of this horrible description. After the victories in which they had gained so much fame to themselves and the nation, if they did not find in this country all those pecuniary advantages which their grateful countrymen might wish, but were unable to give them, surely their lordships would be solicitous, that at least they should preserve their character, that they should not engage in scenes that would unfit them for returning to society in this country; by lowering them in the scale of moral estimation; and loosening all those finer bonds that connected them with high and virtuous principle. They would not wish to see them engaged in a warfare which must infallibly destroy in them that character for humanity, which the British officer had always held so dear. From this stain their lordships must be most anxious to preserve their countrymen;—they must be most anxious to save the laurels of Waterloo and Victoria from being stained with the barbarities of the most horrible civil war of any recorded in history.
The Marquis of Bute
contended, that it was unnecessary to pass a new law interfering with the departure of individuals from this country. He expressed his readiness to concur in any measure which would have the effect of preventing armaments for Spain or South America from being fitted out in this country; but he must strongly object to a bill which went to prevent individuals, upon their own risk and responsibility, from giving their personal assistance to a foreign state. This was a length to which we ought not to go for the gratification of any foreign power. The complaint of this country against France for her conduct in the American war was, not that unprotected individuals were allowed to leave France, and to take a part in the contest between us and our colonies. But 1412 when many of the French officers in the American service returned to France; they went to Versailles, and were there received with the highest favour. In that war, many of the most useful American officers were Germans; but should we have thought of going to war with any German prince because he permitted his subjects to serve with the American army? In the thirty years war, many individuals of these realms took different sides in that contest. In the armies of the empire, in that of Wallenstein, for instance, a great proportion of the officers were Scotch and Irish. There was a considerable difference between the arguments of the two noble earls opposite. The one had told them, the allowing of both parties the liberty of levying soldiers in this country would be of no advantage to Spain, as not one soldier would flock to her camp, while the other told them the officers and soldiers who joined the South Americans were so miserable that they wished for nothing so much as to return. Whence this difference between the two noble earls? With respect to the acts of George 2nd, subjecting those who might enlist in the service of foreign states to the punishment of death, they were most disgraceful and bloody, and every way unworthy of this enlightened age. He would strongly advise the division of the bill, as proposed by his noble friend.
The Earl of Carnarvon
was afraid that this bill was not introduced so much at the instance of a power which had claims from its weakness, as one which was overwhelming in its strength. He should wish to be convinced that no power having an influence in the private affairs of several cabinets, had any influence in promoting the present measure; but he feared that such influence had been exercised, and on that account alone he should be disposed to give his opposition to it. He was sorry that the noble earl who had given so many quotations from celebrated jurists, had not extended those quotations, and not contented himself with giving only sentences which appeared to make for his own argument. He would maintain, that the passages quoted referred to the subjects of states at war with each other, and not to such a case as that for which their lordships were then called to legislate. If the noble earl had continued to read some of the passages from which he had quoted, he would have found that they did not at all refer 1413 to the argument in support of which he had used them. Vattel said, speaking of neutrality, that the permission of a state to levy troops in its own territories, given to one belligerent power and withheld from another, would not be a just ground for war; but that war would be only justifiable, if the state which gave the permission had also furnished the levy so made. Applying this, then, to the particular case before their lordships, there could be no ground for the present bill. The argument of the noble earl, of qui facit per alium facit per se, was an assumption of that which he (lord C.) denied. The noble earl assumed, that the acts of the individuals who engaged in the cause of the Independents were the acts of the government; but it should be remembered that they were not the agents of government who engaged in this cause. Government did not sanction them, and could not be bound for any thing which it did not authorize. The case of America had been cited, but, he conceived, with very little application to the question. Could America be mentioned as an instance favourable to the present measure, when she, who was said to be so strict, had not only net condemned, but absolutely approved, of the making war by an individual of her subjects upon a state with which she was in amity? He need not call to their lordships' recollection the recent case of general Jackson. It had been said, that if this bill were not passed, there would be no fair play on our part towards the contending powers, because that though there might be exertions made to recruit for Spain, no persons would be found to join her cause in this country; but the act which would prevent assistance to either, would, in fact, be as little of fair play towards the other party. It would be giving the preponderance to one side. But was not the situation of Spain and of this country much changed since the year 1814, when the treaty, on which so much stress was laid, was first contracted? Had no events recently taken place, which were calculated to affect the interests of Great Britain? Had not Spain ceded to America that very colony, which of all her other colonies was most important to the welfare of our trans Atlantic possessions? Had not this very cession, which Spain had pledged herself never to make, except with the consent of this country, been defended in their lordships' House, on the ground that 1414 Spain was go imbecile as not to have power to prevent it? Ought not the House, therefore, to pause, as well for the interests of the country, of which they formed so effective a part, as for the interests of humanity, in which all were so deeply concerned, before they passed into a law a bill like the present, especially as their lordships could not help seeing that Spain was not even able to defend those of her colonies which had not revolted? Was it sufficient to say, "We will force our subjects to retire from this contest," without even considering whether the withdrawal of them would benefit the cause either of Spain or of this country? If every British subject who was inclined to hazard his fortune and his life in this struggle, were to be prevented from passing from this country to South America, was there any probability that Spain would ever recover the power which she once wielded over it? Would not each of her colonies, one after another, fall a victim to the avarice and ambition of another great power? Would not the fate of Florida soon become the fate of Mexico? When we looked at the weakness, the imbecility, and the absurd policy of Spain, it was proper that we should also consider what the fate of South America would be, were the House to withdraw the British troops from it. If he had heard the noble earl aright who had brought in this bill, he had said that British troops, with all the discipline and valour which distinguish them, had been sent out in such numbers as could not fail to decide the conflict in favour of the side to which they attached themselves; and yet, to his great surprise, the same noble earl had afterwards made many touching appeals to the feelings of the House, regarding the necessity of preventing our countrymen from embarking in a cause to which it was certain that they must eventually fall a sacrifice. He could not help saying that he was much astonished at this inconsistency in the noble earl's arguments, as also at the very extraordinary mode in which he had made an appeal to their lordships feelings: having marshalled all the Dutch and German jurists in his ranks, having turned all the scraps and quotations which could be taken from them to the very best use to which ingenuity could turn them, the noble earl had made an address to the feelings of their lordships, in order to attract them to that side against which all 1415 their wishes must naturally be directed: for he had, in a contest of millions struggling for liberty against the most debased and arbitrary despot that ever existed— he had, in a struggle between the asesrtors of the rights of humanity and that sovereign who had revived the inquisition; who had re-established torture; though it was abolished in every country of Europe (except indeed a remnant of it were to be found in the kingdom of Hanover), he had endeavoured to excite their passions in support of the cause of tyranny; whilst he had endeavoured to damp them in behalf of the cause of freedom! It was painful to recollect, that whilst the liberty of Spain had been acquired by the toil and blood and expenditure of Britain, that toil and that blood and that expenditure were so far from being allowed to aid the rising liberty of the South Americans, that they were even to be arrayed in the field against it. He thought that upon such a subject the noble earl ought not to have had recourse to any declamatory topics, or, at least, that he ought not to have recourse to such topics as were calculated to propagate an idea that the infusion of British valour and discipline into the American army would lead to a more fierce and sanguinary termination of the struggle than would otherwise take place. Now, if he knew any thing of the valour and discipline of a British soldier, the infusion of those qualities of which he was in possession, into the bosoms of the American Insurgents, would lead to a more fair, a more mild, and a more equitable conclusion of the quarrel. If their lordships should pass the present bill into a law, they would pass a law which would not merely be injurious to liberty in general, but to the interests of Great Britain in particular; and which, at the same time that it would injure us, would not be productive of any ultimate advantage to that power in whose behalf it was intended to operate.
wished to ask two questions. It had been asserted in debate, that no application had been made by Spain on the subject of this bill Would ministers object to a motion for all papers or correspondence with the ministers of Spain, and of other foreign courts, on this subject? Would they also object to lay before the House an account of all licences granted for the exportation of arms, and warlike stores to Old Spain; or if it were deemed more regular, he 1416 would make a motion for an account of all licences granted for the conveyance of such warlike stores?
§ The Earl of Harrowby
said, he had read an account of all the arms exported to Spain, and he had no objection to lay it on the table of the House. He had stated truly that no demand had been made by Spain for any legislative measure; but he allowed that Spain had made complaints of the breaches of the royal proclamation.
wished to know whether no correspondence had taken place with the government of Spain respecting the two laws of Geo. 2nd, which were repealed by this Bill?
The Earl of Liverpool
declared, that not a single word had been said (as had been hinted) at the Congress on this subject; and that there had been no demand made by the Spanish government respecting it. Unquestionably, it was impossible for the representative of Spain in this country to look with indifference at the expeditions which were fitting out against her. But the representations which the Spanish ambassador had made to the British government were not made until he had seen that his majesty's proclamation to prohibit the entrance of British subjects into the Insurgent service was totally disregarded. Undoubtedly that representation would naturally lead to an inference, that if the law did not allow the executive to attend to it, an application to the legislature was desired. As to the production of the correspondence, he thought no sufficient ground had been laid for it, and he should oppose it, unless some stronger cause were assigned.
said, the noble earl had not satisfactorily answered his question, whether reference had been made by the Spanish government to the statutes of George the 2nd.
§ The House divided: on the Amendment: Contents, 27; Proxies, 20 — 47. Not-contents, 49; Proxies 51 — 100. The bill then went through the committee.