ness in the case of Hertz, if he had seen fit. He ought to have done so, if his testimony, lawfully given, could have proved anything material, either to the prosecution or the defense.

There was nothing extraordinary in this particular matter, except the presumption of a foreign consul in supposing that he might interfere by volunteer letters, to affect the course of criminal justice in the United States.

2. In Mr. Crampton's letter to the Earl of Clarendon, of November 27, 1855, it is alleged that the proceedings against Hertz and others, in Philadelphia, were instituted, not against the persons who were osten

sibly arraigned, but against the British diplomatic and consular [523] *agents in the United States. (Ubi supra, p. 134.)

That is incorrect. The proceedings were commenced in March, 1855, when no suspicion was entertained by this Government of the relation of Mr. Crampton and of British consuls to the illegal acts in question. It is true, however, that among the objects expected from and accomplished by the trial, was the legal ascertainment of facts alike important to the British government and that of the United States.

3. In these same letters Mr. Crampton says that, at the time of the trial referred to, (September 21, 1855,) "the United States Government must have known that all recruitment, legal or illegal, had been put a stop to several weeks before." (Ubi supra, p. 134.)

That is a mistake. This Government knew nothing on that point, at that time, except what Lord Clarendon had said in his letter to Mr. Buchanan of July 16, 1855, namely, that the British government had sent orders to put an end to "all proceedings for enlistment."

Lord Clarendon did not mention when the orders were sent; nor does the context of his letter show whether the orders spoken of applied to the United States only, or also to British America. At what time [524] those orders took effect, *to whom sent, and their exact scope, did not then appear of public notoriety, and was never communicated to this Government.

This Government well knew that recruitments took place in August; it did not know that they had ceased in August. So soon as it had satisfactory information of their cessation, instructions were given to desist from all further judicial proceedings, except against official agents of the British government. (Letter of the Attorney-General to Mr. McKeon, of October 20, 1855, ubi supra, p. 129.)

4. In the same letter Mr. Crampton says that the United States Government must have known that the proceedings of Hertz were, from the moment he attempted to enter upon a system of recruitment, disavowed by Her Majesty's officers." (Ubi supra, p. 136.)

This is not so. This Government knew the contrary of what is thus alleged. It knew that Mr. Crampton had corresponded with Hertz. (Ubi supra, p. 67.) It also knew that Hertz was officially employed and paid by Mr. Howe, as the latter has since declared on oath. (Ubi supra, p. 218.) 5. In his letter to the Earl of Clarendon, of March 3, 1856, Mr. [525] Crampton assumes that he *and the inculpated consuls were the real parties defendant, and then proceeds to argue on the further assumption that they were prohibited from appearing in their own defense. (Ut supra, p. 178.)

I have already commented upon and corrected the error of fact involved in these assumptions, in so far as regards the consul.

As to Mr. Crampton, he also could have offered his testimony if he

had pleased. If he suggest that considerations of diplomatic dignity would prevent this, the reply is, that considerations of diplomatic dignity should have prevented his engaging in association with persons, now said by him to be of equivocal character, in the systematic violation or evasion, for a period of nearly six months, of the municipal law of the United States.

He well knew in April that persons, in the actual pay of his government, were under prosecution in Boston, New York, and Philadelphia, and should then have anticipated that his name would eventually come in question before the courts of justice, all the personal annoyance and other inconveniences of which he encountered voluntarily, and with no right now to complain of the consequences.

[526] * For the rest, the law of nations, it is true, exempts Mr. Crampton from trial for misdemeanor; but it is idle for him to suppose that his hired agents in the commission of the misdemeanor, who are not themselves invested with diplomatic privilege, were to have it accorded to them otherwise, or that his participation in the acts perpetrated should not come under observation in a court of justice without his being able to appear directly as defendant on the record.

6. In the same letter Mr. Crampton repeats the erroneous statement that "the consuls were not allowed to be heard on the trial of Hertz." (Ut supra, p. 179.)

I have already remarked on this point. I add, that on the trial of Wagner in New York, pains were taken to obtain the evidence of the active official agent of enlisting there, Consul Barclay's deputy, Mr. Stanley, but without success.

7. In the same letter Mr. Crampton reproaches the "law-officers of the United States" for resorting to the aid of "spies and informers" for the proof of facts. (Ut supra, p. 179.)

Those are designations of mere prejudice applied by Mr. Crampton to his own paid agents and accomplices in the violation of the laws [527] of the United States. *It is a very strange complaint to make against the "law-officers of the United States."

Crimes are not to go unpunished merely because the only attainable witnesses of the crime were accomplices in its commission. If such evidence were excluded, it would be impossible to administer penal law. Its employment belongs to the ordinary course of law in Great Britain, as well as in the United States.

The complaint is the more groundless in this case, since the offense which the parties had committed, and in the commission of which they acted under orders and with pay, proceeding in the first instance from the British ministers, was not of a nature to affect the credibility of the parties as witnesses. Notwithstanding their participation in illegal recruiting, they were competent and credible witnesses, morally, and also by the rigorous rules of law.

I omit all remarks on the captious commentary which Mr. Crampton makes in the same letter respecting the judicial proceedings in the trial of Hertz. That is diplomatic matter. My present object is only to speak of those passages in Mr. Crampton's dispatches in which he attacks the Executive Government by reflections on the Attorney-General.

[528]

*8. In the same letter Mr. Crampton criticises a remark made in Mr. Marcy's letter to Mr. Buchanan of the 28th of December, to the effect that whoever entices away the subjects of another state for military purposes, and without its consent, violates its sovereign rights; and he founds the criticism upon the assumed authority of the original

text of two writers on the law of nations, who are cited by Mr. Marey, namely, Christian de Wolff and Vattel.

As the same authors, and to the same effect, have in another doen. ment been cited by me, it may not be improper for me here to say that the error in this matter is on the part of Mr. Crampton. He assumes that the word "debaucher," in Vattel, is incorrectly rendered in the received English translation, "entice away," and alleges that the idea intended. is "kidnaping," which he infers from the use by Vattel, in the context, of the word "plagiat" with equivalent sense, and as the corresponding Latin word "plagium" is used by Wolff.

What Mr. Crampton impliedly asserts in this criticism is, that though it may be contrary to the law of nations to enter the territory of a foreign government and seize recruits there by force, yet that it is [529] lawful to enter that *territory and entice them into foreign military service, without the consent of the state, provided it be done by pecuniary or other inducements.

The misconception of Mr. Crampton in this respect becomes manifest by reference to the text of Wolff, which is copied and abridged, and thus rendered obscure, by Vattel.'"

It is perfectly clear that Wolff intends by the word "plagium" to cover all the possible means of obtaining recruits in a foreign country without consent, and especially enticement, because, in the passage in which he defines "plagium" and gives illustrative examples, he expressly includes acts of mere persuasion or enticement, and also includes reference to such enticement in contravention of the authority of the state. Mr. Crampton's error in this respect would have been avoided if he had read and quoted the whole of the material passage in Wolff.—(Jus Gentium, sections 785, 756.)

But the most important error of fact which Mr. Crampton commits in this correspondence, relates to the order of the British government for the cessation of recruiting in the United States.

[530]

*In a letter to Lord Clarendon of March 3, 1856, he says:

A new charge is now brought up against us, which is not alluded to in Mr. Marcy's dispatch of December 28, to the effect that, though we promised to stop the recruitment by your note of July 16, we still continued it. I can disprove this by documentary testimony.-(Papers, ut supra, p. 212.)

In a letter to Sir Gaspard Le Marchant of January 13, 1856, Mr. Crampton writes:

There is one story which I want your assistance in demolishing.

I know the assertion to be false, but I wish to have it under your hand that it is so, as far as you are concerned.

Mr. Cushing openly asserts that he knows, and can prove, that we-you and I-went on with the recruitment long after Lord Clarendon said we had been ordered to stop it. Now, how are the facts? Lord Clarendon announced this to Mr. Buchanan in a note dated the 16th of July, a copy of which I received somewhere about the 24 of August. I immediately telegraphed to Lieutenant Preston to break up his station at

Niagara, and not receive another man. I know he obeyed. People who were [531] ready to start from New York were stopped. I also lost no time in communicating with you, in case you should not have heard from home.

As there were no other places where recruits could be received but Niagara and Halifax, all we want is the dates at which the last man was received from the United States. (Ut supra, p. 232.)

Here is exquisite confusion of thought and of statement.

It is immaterial to inquire whether I ever asserted anything of the nature imputed. Certain it is that I can prove it, by the testimony of two competent witnesses, Mr. Crampton and Sir Gaspard Le Marchant. The statement imputed to me is, that the recruitment went on "long

after Lord Clarendon said we (Mr. Crampton and Sir Gaspard Le Marchant) had been ordered to stop it."

Mr. Crampton expressly refers, in his letter to Sir Gaspard, to Lord Clarendon's letter to Mr. Buchanan of the 16th of July. I suppose he alludes to that in the phrase quoted, "Lord Clarendon said we had been ordered." But Lord Clarendon does not say that. He says, "Instructions to that effect were sent out," but does not say when they were sent, nor that they were sent to Mr. Crampton and Sir Gaspard Le Marchant. [532] *Nothing particular was known by me in January, 1856, of those orders, nor to whom they were sent. Of course, I did not speak of them as having been addressed to Mr. Crampton and Sir Gaspard. No direct official knowledge of them came under my eye until they were referred to in Lord Clarendon's recent letter to Mr. Dallas, in which it is stated that the British government "sent out to Canada and to Nova Scotia, on the 22d of June, 1855, orders to discontinue all further proceedings in the matter of enlistment for the foreign legion." But here, again, it is not said that orders on the subject were sent to Mr. Crampton.

I previously knew, however, from other sources of information, that orders had issued to somebody under date of June 22, 1855; and if 1 ever said anything on that subject of the nature imputed by Mr. Crampton, it must have been that the recruitment continued long after it ought to have ceased in prompt or due execution of the orders described by Lord Clarendon. And the fact is so.

Orders to stop recruiting in the United States, dated in London, the 22d of June, should have reached Halifax the 5th of July, and [533] Washington the 8th of July, by the Cunard mail-steamer, the America.-(National Intelligencer, July 6, 1855.)

Now let us see how, when, and by whom the recruiting was actually stopped in the United States, Canada, and Nova Scotia.

Mr. Crampton expressly says in the letter before me, that he, not Sir Edmund Head, gave orders to stop the reception of recruits in Canada, by telegraph, dated "somewhere about," that is, not until after the 2d of August; he implies, but does not distinctly say, that at the same time he sent orders to the same effect to New York, and that he communicated with Sir Gaspard Le Marchant.

Thus, upon his own declaration, the recruiting was in fact continued by Mr. Crampton several weeks after it ought to have ceased, according to the intention of Lord Clarendon.

The matter stands yet worse on the declaration of Sir Gaspard Le Marchant, as it appears in a letter of his dated January 19, 1856, writ ten in reply to Mr. Crampton's letter of the 13th. He says:

My instructions on the subject, the only instructions that I received from any source, were conveyed in two notes dated respectively the 5th and the 13th of [534] August last, both of which reached *me about the same time, the first by the land-route, the second by the Cunard mail-steamer.—(Ut supra, p. 233.)

He afterward states, in the same letter, that the time when he received the notes was the 17th of August.

These two notes, it is implied by other parts of Sir Gaspard's letter, were from Mr. Crampton; and they were the only instructions, Sir Gaspard says, which he received from any source. That is to say, the whole business, both in Canada and in Nova Scotia, as well as the United States, was under the superiutendence of Mr. Crampton alone; and the orders on the subject from the British government went to him, not to

Sir Edmund Head or to Sir Gaspard Le Marchant. This fact it will be material to remember in the sequel.

It is also proved that the date of Mr. Crampton's orders was the 5th of August; which corresponds with the fact that the latest act of recruiting proved on the trials was of the 5th of August.-(Mr. McKeon's letter to Mr. Cushing, Ex. Doc. Senate, 34th Congress, first sess., No.35, p. 87.)

Thus far we proceed on the assumption that not only Sir Gaspard Le Marchant, but Mr. Crampton, never received any direct communication

of the order of June 22; that the only knowledge Sir Gaspard [555] had of it was through Mr. *Crampton; and that the only knowl edge Mr. Crampton ever had of it was by the incidental reference to it in Lord Clarendon's letter to Mr. Buchanan of the 16th of July, a copy of which was received by Mr. Crampton, at Washington, on the 2d of August.

Is that possible? Can it be that the foreign office of the United Kingdom thus carries on its business? That Mr. Crampton was left by Lord Clarendon to discover the existence of such an order through the indirect channel of his own letter to Mr. Buchanan? It is not pos sible and is not the fact.

On the 22d of June, 1855, Lord Clarendon addressed to Mr. Crampton the following letter:

[Extract.]

FOREIGN OFFICE, June 22, 1839.

I communicated to the war department Mr. Lumley's dispatch of the 21st ultimo, inclosing copies of his correspondence with Her Majesty's consul at Mobile, with regard to an offer made by a Pole, resident in that city, to enlist several of his countrymen for Her Majesty's foreign legion.

I have been informed by Lord Paumure in reply, that his lordship wishes all forther proceedings in the matter of enlistment to be stayed, and the project to be definitively abandoned.

[536]

Corresponding instructions to the governor-general of Canada, and to the lieutenant-governor of Nova Scotia, will be dispatched by this evening's mail.— (Papers, ut supra, No. 22, p. 16.)

Now comes the question, why were not these orders executed by Mr. Crampton? How did it happen that they never reached Sir Gaspard Le Marchant? That they never did reach him is clear, for the first and only instructions he ever received on the subject were from Mr. Crampton, under date of the 6th of August. But what became of Lord Clarendon's letter to Mr. Crampton of the 22d of June? That letter, as ap pears on its face, left England by the steamer of the 23d, the America, whose mail yas in Washington the 8th of July. Of course Mr. Crampton persisted in the enlistment business for about one month after the receipt of express orders for its cessation directed personally to him by the Earl of Clarendon.

What became of the orders dispatched by the same mail to Sir Gaspard Le Marchant? Of that, no explanation appears. But the subject has another bearing, of deepest importance to the good understanding of the United States and of Great Britain.

Mr. Crampton lett Washington on the 2d of May, 1855, to attend to the recruiting business in Canada and Nova Scotia.-(Ut supra, [537] pp. 131, 132.) *He returned to Washington on the 2d of June,

and there he remained during the month of July.-(Ut supra. pp. 22, 132.) Why did he not obey the orders of his government, as communicated in Lord Clarendon's letter of the 22d of June, and put a stop to recruiting at once on the 8th of July, instead of waiting until