sibility of Sir Gaspard le Marchant, lieutenant-governor of the province of Nova Scotia. A military depot was established at Halifax for the reception and enrollment of recruits; and Mr. Howe, a member of the provincial government, with other agents, came into the United States to make arrangements for engaging and forwarding the recruits, chiefly from Boston, New York, and Philadelphia. . Subsequently, corresponding arrangements were made for collecting and forwarding recruits from the Western States, by Buffalo or Niagara, through Upper Canada.

These acts were commenced and prosecuted with printed handbills and other means of advertisement, and recruits were collected in depots at New York and elsewhere, and regularly transported to Canada or Nova Scotia, with undisguised notoriety, as if the United States were

still a constituent part of the British empire. Of course, they [210] attracted great attention, and the various measures, whether

legal or political, proper to put a stop to them were instituted by your direction, through the instrumentality of the foreign or legal departments of the Government of the United States.

In the course of the investigations which ensued, among the facts brought to light are some, in the documents referred to me, which unequivocally implicate not only the British consuls but the British minister himself in the unlawful transactions in question, and so call for inquiry as to the rights of this Government in reference to them and their government.

In the application of the general rules of law to the offenses committed, it is necessary to distinguish between the case of any of the consuls and that of the minister.

The several district attorneys of the United States within whose jurisdiction, respectively, the cases occurred very properly assumed that the consuls were subject to indictment for infraction of the municipal law, and have proceeded accordingly, prosecutions having already been instituted in the southern district of Ohio against the consul at [211] Cincinnati, and in the southern district of New York * against an officer of the consulate of New York.

Nothing is better settled by adjudication in this country than that foreign consuls are subject to criminal process for violation of the municipal laws.-(United States vs. Ravara, 2 Dall., 297; Mannhardt ës. Soderstrom, 1 Bin., 144; Commonwealth vs. Kosloff, 1 Serg. & R., 545; State vs. De la Foret, 2 Nott and Mc., 217.)

These adjudications are in exact conformity with the law of nations in regard to consuls, as understood and practiced not less in Great Britain than in the other states of Christendom.-(See ante, p. 18; also Kent's Com., vol. i, p. 44; Wheaton's Ed. by Lawrence, 305.)

The only privilege which a consul enjoys in this respect in the United States is that awarded to him by the Constitution, of being tried by the Federal courts; the effect of which is, that his case remains within the control of the General Government, which may deal with it according to the convenience or the exigencies of its foreign policy, without imped iment from the authority of any of the individual States of the Union.(Const., art. iii, sec. 2; act of September 24, 1789, sec. 9, 1 Stat. at Large, p. 77.)

The consul at Cincinnati, as appears by the legal proceeding [212] there, supposes that he is entitled to the benefits of certain pecu liar stipulations in the consular convention between the United States and France of February 23, 1853. If it were so, that would not serve him on the main point, because it does not exempt consuls from the criminal jurisdiction of either of the contracting governments. But

this convention has no application whatever to the consular relations of Great Britain and the United States. Whether it applies or not to governments with which we have entered into stipulations to place our respective consuls on the footing of the most favored nation, is a question as yet unsettled. But there is no stipulation of that nature in existence, as between Great Britain and the United States. Of course, the duties and the rights of American consuls in Great Britain, and of British consuls in the United States, stand upon the law of nations, except as the same is modified by their treaties and by the local law of either country. The local law of each, as we have seen, withholds from consuls the diplomatic privilege of exterritoriality. A British consul, therefore, has no just cause of complaint if, when charged with an offense, he is held amenable to the criminal jurisdiction of the United States.

[213]

In addition to those ordinary means of redress *in the case of the misconduct of a foreign consul, is that afforded by the law of nations. The President of the United States has the undoubted power, in his discretion, to withdraw the exequatur of any foreign consul. To justify the exercise of this power, he does not need the fact of a technical violation of a law judicially proved. He may exercise it for any reasonable cause, whenever, in his judgment, it is called for by the interests or the honor of the 'United States.-(De Clercq, Guide des Consulat es, p. 101.)

On each of these points provision was made in the commercial convention between the United States and Great Britain of July 3, 1815, which stipulates that "before any consul (in either country) shall act as such, he shall, in the usual form, be approved and admitted by the government to which he is sent; and * in case of illegal or improper conduct toward the laws of the government of the country to which he is sent, such consul may either be punished according to law, if the law will reach the case, or be sent back; the offended government assigning to the other the reasons for the same."—(Article IV.)

*

This convention, by its terms, was to subsist only four years. By [214] a subsequent convention, that of October 20, 1818, its duration was prorogued ten years, (Article IV,) and afterward, by the convention of August 6, 1827, for another ten years, and until denounced by either party on twelve months' notice.

For the rest, the stipulations of the convention of 1815, as continued by the conventions of 1818 and 1827, are but declaratory of the law of nations, as that is understood both in Great Britain and the United States.

In regard to the minister, it is clear, if he violate the laws of the gov ernment to which he is accredited, or otherwise offend its sovereignty, there is no remedy except in the manner and form prescribed by the law of nations. He enjoys exemption from judicial process, which immunity is not so much his right as that of his government.

It was formerly held in England, as we see in March's case, reported by Rolle, in the time of James I, that, "although an embassador is privileged by the law of nature and of nations, yet, if he commit any offense against the law of nature or reason, he shall lose his privilege, but not if he offend against a positive law of any realm.”—(Rolle's R., p. 175.) No such distinction between mala prohibita and mala in se, as respects embassadors, is now admitted, and their exterritoriality [215] is the unanimous doctrine of all publicists, and is recognized in England, as it is in the United States, by statute.

The whole question is learnedly discussed by Wildman, whose views

are in accordance with those of Grotius and Bynkershoek, which now prevail throughout Christendom.-(Institutes, vol. 1, p. 90.)

But the privilege of exterritoriality is not conferred on a public minister as a shield to crime. For any crimes which he may commit the remedy varies according to the nature of the case.

As to offenses against the municipal law of the country, committed by a foreign minister, or other person entitled to the privilege of diplo matic exterritoriality, we have a statute which declares that any writ or process against them, issued by any court, is utterly null and void.(Act of April 30, 1790, sec. 25, 1 Stat. at Large, p. 117.) And this imma nity of public ministers has been the subject of judicial recognition is several instances. (See United States vs. Hand, 2 Wash. C. C. R.. 435; United States vs. Liddle, ibid., p. 205; ex parte Cabrera, ibid., p. See also Wheaton by Lawrence, p. 284; Kent's Com., vol. 1. p. 38; Opinion of Mr. Attorney-General Lee, of July 27, 1797.)

232.

The cases of criminality on the part of a public minister may be [216] distinguished into the following classes:

1st. If the crime committed by the minister affect individuals only, (delicta privata,) the government of the country is to demand his recall; and if his government refuse to recall him, the government of the country may either expel him by force or bring him to trial as no longer entitled to the immunities of a minister.-Kluber, Droit des Gens, sec. 211; Ch. de Martens, Guide Diplomatique, tom. 1, p. 88.)

20. If the crime affect the public safety of the country its govern ment may, for urgent cause, either seize and hold his person until the danger be passed, or expel him from the country by force; for the safety of the state, which is superior to other considerations, is not to be per iled by overstrained regard for the privileges of an embassador(Ibid.; see also Kent, vol. 1, p. 38; Schooner Exchange rs. McFadden, Cranch, 116-139.) Indeed, it has been held in such a case in England that the offending party may be proceeded against for treason. " it is affirmed in the case of Rex vs. Owen, "an embassador compass and intend death to the King's person in the land where he is, he may be

condemned and executed for treason."—(Rex vs. Owen, Rolle's R.. [217] p.188.) But that dictum is not in concord with precedents, which,

in general, go no further than the arrest and confinement and the eventual or the immediate expulsion of a public minister for treasonable acts or acts dangerous to the security of the state.

Signal instances of the arrest or summary expulsion of publie ministers in such a case are collected by Bynkershoek, by Wicquefort, by Wildman, and by Charles de Martens, (Causes Célèbres.)

A very modern case of great notoriety is that of Sir Henry Bulver, who, while British minister at Madrid during the administration of the Duke of Valencia, (General Narvaez,) being detected in complicity with domestic revolutionists, was, after his recall had been respectfully re quested of the British government and refused by it, required by letter of the Duke of Sotomayor, the Spanish minister of foreign affairs, to quit Spain immediately, and did so.-(Hernandez, España y el Visconde Palmerston, Madrid, 1848.)

The incident occasioned a brief interruption of the diplomatic rela tions of the two governments; but Spain stood firm; and, as Sir Henry Bulwer had acted under the instructions of Lord Palmerston, the Brit ish minister of foreign affairs, the British government, after some delay and the exchange of explanations, conscious that it had bee [218] placed in the wrong by Lord Palmerston, *s tban ted to send a new minister to Madrid.-(Hansard's Debates, third series, vol 99, p. 347.)

3d. Finally, if the offense be grave, but not such as to compromise the public safety, the course of proceeding in accordance with the law of nations, and sanctioned by diplomatic usage, is to demand the recall of the minister, and meanwhile to refuse, or not, all further intercourse with him, according to the circumstances.

The United States have pursued this course in several instances, of which a memorable one, and exactly pertinent to the present case, is the demand on France for the recall of M. Genet, guilty of enlistments in this country without the consent of its Government.-(Am. State Papers, For. Af., vol. 1, No. 65.)

The public law and usage in this respect are well stated by a modern English author, who says:

*

With respect to the dismissal of ministers, it is usual, where the matter admits of delay, first to demand his recall. But this is a mere act of courtesy, which cannot be expected on occasions of imminent peril. The dismissal of an embassador on such occasions is not an assumption of jurisdiction, but a measure of self-defense, which no one has ever denied to be legal in the case of embassadors. * If [219] an embassador use force he may be repelled by force. When the danger

*

*

is imminent, an embassador may be seized as a public enemy, may be imprisoned, may be put to death, if it be indispensably necessary to our safety.-(Wildman, Institutes, vol. 1, p. 114.)

On the whole, the case of the British minister, regarded in the light of established rules of the law of nations and diplomatic usage founded thereon, would seem to resolve itself into, first, a question of strict right; and, secondly, of discretion in the exercise of that right.

It clearly is not a case affecting the security of the state, and thus needing or justifying the interposition of summary authority, as in the instance of the Prince of Cellamare in France, (Ch. de Martens, Causes Célèbres, tom. 1, p. 139,) Count Gyllenberg in Great Britain, (Foster's Crown Law, p. 187,) and many other cases of historical and legal notoriety or interest. No acts of violence are imputed to the British minister, nor any purpose or fact threatening to the national stability of the United States. What is charged against him is conduct improper in a public minister, illegal as respects the municipal law, in

jurious to the national sovereignty. If sufficiently shown, it re[220] quires to be repressed *in such a manner as effectively to vindi

cate the public honor. Of strict right the President may, as the Queen of Spain did in the case of Sir Henry Bulwer, send his passports to the British minister, with intimation to leave the country without delay; or he may well, in his discretion, adopt the milder course, as President Washington did in the case of M. Genet; that is, after affording to the British minister opportunity of explanation through the Secretary of State, then, if his explanation be not satisfactory, to demand his recall of the Queen's government. The personal esteem which the British minister justly enjoys here in other respects might counsel the latter course, more especially if the British government, assuming the responsibility of his acts, should thereupon proceed to tender, in its own name, complete and ample satisfaction for having authorized or permitted such a flagrant wrong as the systematic attempt to recruit a military force in the United States by the instru mentality of the lieutenant-governor of Nova Scotia.

I have the honor to be, very respectfully,

The PRESIDENT.

C. CUSHING.

[221] *Mr. Cushing to Mr. McClelland, Secretary of the Interior.

ATTORNEY-GENERAL'S OFFICE,

August 24, 1855.

SIR: Your letters of the 2d and 15th instant refer to me for consid eration certain accounts of expense incurred in watching the steamers United States and Ocean Wave in the port of New York.

It appears that these services were performed in execution of orders duly and lawfully given by the President, through the customary and proper channel of the State Department, to prevent the departure of the steamers in question, they having been chartered by Henry L. Kinney and Joseph W. Fabens for an alleged military expedition against the republic of Nicaragua, undertaken in violation of an act of Congress. (3 Stat. at Large, pp. 447-449.)

It is undeniable, therefore, that, assuming the service charged for to have been performed by these parties as charged, reasonable compensation therefor is due them on the part of the United States.

Before examination of the accounts is entered upon, however, it is necessary to determine to what department jurisdiction of the subject belongs.

I think you have rightly conceived that the accounts are not of matters chargeable by their nature to the appropriations for judicial [222] *expenditures, and, therefore, not of the resort of the home de partment.

Inasmuch as the orders for the service emanated from the Department of State, and were issued for the maintenance of the neutrality of the United States, it seems very clear to me that the accounts are chargeable to appropriate funds placed by law at the disposal of the Secretary of State for objects of foreign relation.

I have therefore inclosed the papers, with a copy of this opinion, to the Secretary of State.

I am, very respectfully,

Hon. ROBERT MCCLELLAND,

C. CUSHING.

Secretary of the Interior.

[223] *Mr. Cushing, Attorney-General, to Mr. McKeon, district attorney.

ATTORNEY-GENERAL'S OFFICE,

September 10, 1855.

SIR: I have the honor to inclose herewith a copy of a dispatch from the British minister to the Secretary of State, and of letters annexed, alleging that troops have been recruited in New York by the Accessory Transit Company for service in the state of Nicaragua, and to request you to investigate the fact, and if, on such investigation, it shall ap pear that any such recruitments have been made in violation of law, then to institute criminal proceedings against the parties concerned. I am, yours, &c., &c.,

C. CUSHING.