When the Mexican Ambassador informed the Department of State that two agents of a revolutionist leader were in the United States "where they continue stirring up trouble and consequently violating the neutrality laws of the United States", Secretary Knox replied that—

"it should be recalled that, since under the American Constitution liberty of speech and of the press is guaranteed, mere propaganda in and of itself would probably not fall within these [neutrality] statutes and would not therefore be punishable thereunder." The Mexican Ambassador (De la Barra) to the Secretary of State (Knox), no. 362, Nov. 28, 1910, and Mr. Knox to Señor de la Barra, no. 353, Dec. 1, 1910, MS. Department of State, file 812.00/499; 1911 For. Rel. 368, 370, 371.

In reply to an inquiry from the Treasury Department as to what the Department of State would regard as "the use of a port as a basis of operations from which to supply" Mexican insurgents, Secretary Lansing wrote:

I consider that President Taft stated the matter as definitely as it can well be put, in his letter of May 12, 1911, addressed to Supply the Secretary of the Treasury, a portion of which reads as follows: depot "In other words, they [the insurrectos] may not establish a depot and maintain storehouses in El Paso and, from time to time, withdraw from there the supplies they need, whether this be food or munitions of war."

Further, the following statement, also contained in President Taft's letter, appears wholly sound and pertinent to the present situation confronting your Department:

"The mere sale, however, of supplies in El Paso to Mexicans, whether insurrectos or supporters of the Government, and their delivery across the border without more, is not a violation of international law or of the neutrality statute."

[Brackets inserted by Secretary Lansing.]

The Secretary of State (Lansing) to the Secretary of the Treasury (McAdoo), Mar. 17, 1917, MS. Department of State, file 611.1224/108. See also Mr. Lansing to Mr. McAdoo, Dec. 8, 1915, ibid. 612.1123/180.

Often the idea has been expressed that it is necessary that the use of a neutral port or waters be repeated use in order Repeated to constitute a base. It is evident that frequent or repeated use use would be one of the clearest evidences of the use of a port as a base. A single use of a port might, however, constitute the port a base provided this use were in excess of or in contravention of permitted use. It is now generally admitted that a belligerent is bound not to use neutral waters except as permitted and that the neutral state is bound to use the means at its disposal to prevent such unpermitted use. These general rules indicate the principle which underlies the idea of base, viz, use beyond that permitted to the belligerent and giving rise to an obligation on the part of the neutral state to use the force at his disposal to prevent. It is not for the belligerent to judge what should be permitted; it is the duty of the belligerent to refrain from acts which are not permitted by the laws and proclamations of neu

Base in another state

trality. It may be said that in time of war the use of neutral ports or waters other than permitted by laws and proclamations constitutes such ports or waters a base.

A base within neutral jurisdiction is therefore a place which is used by a belligerent in a manner not permitted by law.

1932 U.S. Naval War College, Int. Law Situations 25-26.

In answer to the Chilean contention that the use of the Chilean island of Más Afuera for removal of fuel and provisions from prizes or supply ships to German warships amounted to making it a base of operations, the German Government wrote the Chilean Minister on Dec. 7, 1916 that"according to the general rule of international law the existence of a base of operations cannot be spoken of except when in a given case acts have been committed which in principle are not illegal but which, if they are repeated, are incompatible with neutrality. Above all, it would be necessary to include among them acts which directly augment the strength of a warship as an element of combat. In this sense the transfer of coal and the furnishing of supplies, occurring a single time, could not be considered an augmentation of the combatant force of a ship because these steps are necessary only for navigation as such.

"Finally it makes little difference whether those materials are transferred from special supply ships or from prizes or come from the littoral - state itself.

"Moreover, the operations of the German squadron, above all the route taken by it after its stay in Chilean waters, will have probably shown to the Chilean Government that the German naval forces have not made use of Chilean territorial waters as a base for future operations."

Chile, Memoria del Ministerio de Relaciones Exteriores, Culto y Colonizacion, Diciembre de 1915-Noviembre de 1919 (1920) 177, 190, 193, translation.

With respect to the action of a California firm in supplying coal to the Mexican port of Guaymas for the use of German cruisers, the Department of State wrote that

though a port of another neutral nation is being used as a base for the naval operations of a belligerent, this Government does not deem itself under obligation to prevent the shipment of naval supplies to that port. The duty of preventing an unneutral act rests entirely upon the neutral state whose territory is being used as such a base.

The Counselor for the Department of State (Lansing) to the British Ambassador (Spring Rice), Oct. 27, 1914, MS. Department of State, file 763.72111/564.

HOSTILE EXPEDITIONS

8664

Neutral territory must not be used as a base from which military expeditions set forth or military enterprises are carried on against

another state. To prevent such use of territory of the United States, it was provided in the Criminal Code of 1909:

SEC. 13. Whoever, within the territory or jurisdiction of the United States, begins, or sets on foot, or provides or prepares the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, shall be fined not more than three thousand dollars and imprisoned not more than three years. 35 Stat. 1088, 1090.

By the Espionage Act of June 15, 1917 this section was amended to provide for the punishment of—

"Whoever, within the territory or jurisdiction of the United States or of any of its possessions, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or who takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace." 40 Stat. 217, 223; 18 U.S.C. §25.

See Roy E. Curtis, "The Law of Hostile Military Expeditions as Applied by the United States", 8 A.J.I.L. (1914) 1, 224.

...

". . . It is contended that the sworn complaint, on which the warrant issued, failed to charge the defendant with an offense under the laws of the United States. The contention is that the preparation of such a military expedition was not a violation of section 13 of the Penal Code, because the government of Carranza had not been recognized at that time as the legitimate government of Mexico. We think the decision of the Supreme Court in the case of The Three Friends, 166 U.S. 1, 17 Sup. Ct. 495, 41 L. Ed. 897, shows that neither prior recognition of legitimacy or of belligerency of the government or faction against which the expedition is directed, by this government, is necessary to make applicable the provisions of section 13 to such an expedition." De Orozco et al. v. United States, 237 Fed. 1008, 1012 (C.C.A. 5th, 1916).

In 1916 certain defendants were charged with conspiracy in the United States to violate section 13 of the Criminal Code of the United Purpose of States by setting on foot a military enterprise against Great Britain enterprise to blow up the Welland Canal in Canada, which was being used for the transportation of military forces and supplies. It was charged that the conspirators had arranged for certain Germans to carry out the enterprise and had provided dynamite and money. The defendants demurred to the indictment on the ground that no offense under section 13 was charged, since there was no allegation that the defendants were organized or equipped as a military force or unit or that they constituted a body of men acting together or under command. The demurrer was overruled. Judge Wolverton of the District Court of the United States for the Southern District of New York said:

The purpose of the expedition may serve as well to give cast to the military character as even the organization by which

the enterprise is to be carried into effect. Thus a most completely organized military detachment of soldiers marching from a neutral into a belligerent country, simply to march in and then out again, without threat or purpose of attack in any direction upon the belligerent, or upon any of its institutions, while it might impinge upon international neutrality regulations, would not, it is believed, contravene the statute; nor would a wholly unorganized and irresponsible mob of persons going from a neutral into a belligerent state, with a purpose of committing depredations upon the latter's military institutions, alone constitute an infringement of the statute. But if there be a preconcerted plan of operations, with leadership, and a co-ordination of men and arms and munitions and other means for attacking the armies or navies of the belligerent, or crippling or destroying her military institutions, set on foot for the purpose and with the intention of so attacking the belligerent nation in either aspect, and thereby to render aid and assistance to the enemy, the military enterprise or expedition contemplated by the statute would seem to be complete.

The indictment here shows a preconcerted plan, the persons charged and the "said other persons" acting together for one common purpose, that of attacking and destroying a military institution of a belligerent nation, all directed by a common leadership, and I am impressed that it is sufficient under the authorities.

United States v. Tauscher et al., 233 Fed. 597, 599-600 (1916).

Several defendants, indicted for a violation of section 13 of the United States Criminal Code, were charged with having begun and set on foot a military enterprise to be carried on against Great Britain Sending spies by sending spies from the United States to British territory who, while posing as newspaper correspondents, would gather and transmit to Germany information with respect to food conditions, the sailing of merchant vessels, and the like. One defendant had been engaged as a spy and had gone to Great Britain. In overruling a demurrer to the indictment, Judge Augustus Hand said that the defendants' objection

Military expeditions and military enterprises

comes down, in my opinion, to the single question as to whether the sending out of a spy or spies to the dominions of a country with which we are at peace comes within the prohibition of this

statute.

There are numerous cases holding that the expedition or enterprise aimed at by this statute must be of a substantial military character; that if a number of men went upon it, they must answer in a fair way the description of soldiers, and must have some discipline, arms, and concert of action. These cases, I believe, all relate, however, to the portion of the statute which deals with a military expedition. This feature of the statute is distinguished from the language therein prohibiting a military enterprise, and

the matter is discussed by the Supreme Court of the United States in Wiborg v. United States, 163 U.S. 632, 16 Sup. Ct. 1127, 1197, 41 L. Ed. 289. I think the test was properly laid down in this court by Judge Wolverton in the case of United States v. Tauscher (D.C.) 233 Fed. 597, and applied by me at the trial, and that test (although in the case of United States v. Tauscher there was a military expedition, as well as enterprise) is: What is the substantial character of the act? Was the act one which can fairly be considered as an accompaniment of military operations, so intimately connected with them that it forms a natural, if not inevitable, part of such operations? And were the person or persons engaged in it such persons as are reasonably to be regarded as part of a military or warlike enterprise?

If I am right in this definition, it seems to me that no one can dispute that spies are, and from time immemorial have been, essential accompaniments of armies and military expeditions and enterprises of all kinds. I do not think that the fact that Bacon was the only person sent out as a spy, even though the allegation in the indictment that it was arranged to send others be disregarded, can make any difference. If we were dealing with a military expedition, the word would probably call for several persons. It cannot, for a moment, be contended that an aviator, who started from New York in an armed aeroplane alone to throw bombs upon the city of Montreal or the city of Mexico, would not be engaged in a military enterprise.

During the argument I illustrated my belief that spies are persons who may engage, and who do engage, in a military enterprise, by suggesting that, if those who besieged a city should send in a spy to obtain information as to the food supply, he would clearly be in the same category as any other soldier, excepting that he would suffer the death penalty by military authority when he was caught. In other words, the moment it is admitted (and the allegations of the indictment must be taken at their face value) that the defendant Bacon was a spy, that moment he becomes in every sense, so far as the statute is concerned, a soldier, and part of the military.

Nor do I mean to say that a person is not within the inhibitions of the act who is not within the precise category of a soldier or spy. The act prohibits a military enterprise, which the Supreme Court has defined as "a martial undertaking, involving the idea of a bold, arduous, and hazardous attempt." Wiborg v. United States, 163 U.S. 650, 16 Sup. Ct. 1134, 41 L. Ed. 289. It would seem evident that a person who inaugurates within the United States any act of a warlike nature, to be carried on thence against the territory or dominion of a foreign state with which this government is at peace, is denounced by the statute.

I have wished to point out that the words "military enterprise," while including a military expedition, have been held by the Supreme Court to give a wider scope to the statute than the latter term, and that a "military enterprise" may consequently include various undertakings by single individuals, as well as by a number of persons.

United States v. Sander et al., 241 Fed. 417, 419-420 (S.D.N.Y., 1917).