Furnishing munitions to rebels Intrigue in neutral territory Certain defendants were charged under section 13 of the Criminal Code with beginning preparations for and setting on foot a military enterprise to be carried on from the territory of the United States against Great Britain by stirring up trouble in India and arranging for the importation into India of arms and ammunition to be used by the natives in a revolt against British rule. Demurrers to the indictments were overruled, the judge saying: It is sufficient to charge in the indictment that the defendants, by an act the character of which is of a warlike nature, inaugurated and set on foot an enterprise for the furtherance of a military or warlike purpose against a kingdom or country with which the United States are at peace. ... Preparations for, and setting on foot means of, importing into India large quantities of arms and munitions of war to be supplied to the natives of India and the acceptance of money for this purpose, is a sufficient charge, if true, to charge a crime within section 13. Individuals, as well as a number of persons, may assist in providing the means for a military expedition, to wit, the preparing for the shipment of arms and munitions of war, so as to commit a crime within the meaning of section 13. United States v. Chakraberty et al., 244 Fed. 287, 292, 293 (S.D.N.Y., 1917). Defendants, indicted for conspiracy to violate section 13 of the Criminal Code, demurred to the indictment on the ground that the offense covered by that section necessarily and logically required the concurrence of a plurality of agents for its consummation, and that, therefore, such agents could not be charged with conspiracy to commit that offense. The demurrers were overruled, Judge Rudkin saying: "I see no reason, however, why a single individual may not begin or set on foot a military expedition or enterprise, and more especially why a single individual may not well provide or prepare the means for such an expedition or enterprise. Everything must have a beginning, and this must necessarily be true, if the words 'to begin or set on foot' have the broad and comprehensive meaning attributed to them by counsel for the defense. "It seems manifest that these acts might be committed without a plurality of agents; indeed, while not controlling, it is a significant fact that, for upwards of 100 years Congress has employed the singular number in defining the crime here denounced. I am satisfied, therefore, that there is no inconsistency or repugnancy in charging a conspiracy to violate section 13 of the Penal Code." United States v. Ram Chandra et al., 254 Fed. 635, 636, 637 (N.D. Calif., 1917). In February 1917 the British Embassy protested that the United States was allowing the continuation on its territory of intrigues against British possessions in the East. It was stated that the British Government could not regard the negligence of the United States authorities toward such intrigues as being compatible with the duties of a neutral power and that while awaiting the results of the protest the Embassy was refraining from taking measures in Eastern waters to prevent the spread of hostile and seditious movements. The Department of State answered that it adheres to the principle exemplified in the American Ambassador's note of April 27th last in the China case, that the proper recourse against intrigues in neutral territory is to complain to the Government of the neutral power within whose territory they are carried on, and trusts that His Majesty's Government will continue, as the release of the men in the China case indicates their intention to do, to adhere to the same principle, by referring complaints as to intrigues in this country to the Government of the United States instead of endeavoring to prevent them by seizing mails on the high seas and by removing insurrectionists and intriguers out of American vessels and from under the American flag-practices in which the British Government should know the Government of the United States can not acquiesce. The Department of State repudiated the charges, specifying the instances in which it had acted to investigate and to prevent the carrying on of intrigues on territory of the United States, and stated that, although intriguers might have sailed from American ports in order to carry out seditious designs, there was no evidence that they had formed any military expedition or enterprise within the United States contrary to the laws thereof, that they had left the United States as a military organization, that they had been supplied with arms and ammunition in the United States, that they had been supplied on the high seas with arms and ammunition from the United States, or that arms had been permitted to leave the jurisdiction of the United States for revolutionary purposes in India. The Department therefore concluded that none of the elements of a military expedition in violation of the neutrality laws of the United States was present in the activities of the alleged intriguers. Memorandum from the Department of State to the British Embassy, Feb. 23, 1917, MS. Department of State, file 763.72111H58/5; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 237, 238, 240. At the instigation of a German military attaché and a German Vice Consul certain persons in the United States joined (in 1915) in a scheme to start a revolution in India against the British Government. Plans were formulated at meetings in Chicago and money was furnished some of the persons who started for India and arranged to buy arms and ammunition. Conviction of certain persons was obtained in 1917 in the District Court of the United States for the Northern District of Illinois. They were charged with violating, and conspiracy to violate, section 13 of the Criminal Code. In affirming their conviction, Judge Page said in part: 1 Whether what the defendants did actually reached the dignity of a military expedition or enterprise is not deemed material, if the evidence shows that, under the conspiracy charge, the conception, the thing they intended, amounted to a military expedition or enterprise, and if under the other charge the defendants did in the way charged any one or more of the things charged. "... While the substantive thing aimed at in the statute is the prevention of a military enterprise within the United States against a territory or people of a friendly nation, yet the things actually punishable under the statute are very different. It is not necessary, to warrant a conviction under the statute, that there shall at any time be in existence a military expedition or enterprise. So far as a military enterprise is concerned, it is sufficient if a military enterprise was a part of the intent and purpose of those engaged in the conspiracy in the one case, and of the person or persons engaged in the doing of the things prohibited by the statute in the other case." Although it was claimed that the enterprise, if there was one, was not to be carried on from the United States, the court held that the plans had been made in the United States, that the parties left directly from Chicago for participation in the undertaking, and that the "organizing and directing head was in the United States". Jacobsen v. United States, 272 Fed. 399, 402, 404 (C. C. A. 7th, 1920); certiorari denied, 256 U.S. 703 (1921). Several defendants, including a German Consul and Vice Consul, were indicted for conspiracy to prepare means for a military enterprise to blow up tunnels between the United States and Canada and also British ships in violation of section 13 of the Criminal Code of the United States. A demurrer to the indictment was sustained on the ground that the charge was merely in the language of the statute without adequate specification of the nature of the military enterprise. United States v. Bopp et al., 230 Fed. 723 (N.D. Calif., 1916). The defendants unsuccessfully pleaded this decision in abatement when a new indictment was found, and the Government's demurrer to the plea in abatement was sustained. United States v. Bopp et al., 232 Fed. 177 (N.D. Calif., 1916). The defendants were thereupon charged with conspiracy to violate section 13 of the Criminal Code and with conspiracy to do acts in restraint of trade in violation of the Sherman act. On motion of the Government these indictments were consolidated. United States v. Bopp et al., 237 Fed. 283 (N.D. Calif., 1916). They were found guilty on both indictments in Jan. 1917. The Assistant Attorney General (Warren) to the Counselor for the Department of State (Polk), Jan. 11, 1917, MS. Department of State, file 702.6211/325; 1917 For Rel., Supp. 1, p. 579. After the severance of diplomatic relations between the United States and Germany the German Government suggested that legal proceedings against three German officials, including a Consul and Vice Consul, be deferred until the reestablishment of diplomatic relations, and gave assurance that if the United States would agree to their free departure the German Government would oblige the officials to place themselves at the disposal of the courts in San Francisco after the reestablishment of diplomatic relations. It alternatively suggested that they might be sent to a neutral state under similar conditions. The Department of State declined to accept this suggestion. The Swiss Minister in charge of German interests (Ritter) to the Secretary of State (Lansing), Feb. 28, 1917, and the Acting Secretary of State (Polk) to Mr. Ritter, Mar. 3, 1917, MS. Department of State, file 702.6211/277; 1917 For. Rel., Supp. 1, pp. 581-583. A group of armed Yaqui Indians who had been engaged in an insurrection in Mexico for several years went to Tucson, Arizona, Aid to existing enterto secure arms and ammunition. The plaintiff in error was convicted prise of violating section 25 of title 18 of the United States Code by selling arms and ammunition to them. He contended that, in as much as the rebellion was already in progress in Mexico, no expedition began in Arizona but that any expedition involved began in Mexico and was to operate there. In affirming the conviction, Judge Wilbur said: The question thus presented by the record is whether or not the return of the Yaqui Indians to Mexico with arms and am- Supplies to munition procured in Tucson constituted a military expedition rebels or enterprise to be carried on from Arizona against the Mexican government. If so, although the plaintiff in error may not have begun the expedition or set it on foot, or begun or set on foot the revolution or rebellion in Mexico, he did knowingly provide means for this particular expedition or enterprise in violation of the statute. It is clear that the enterprise or expedition was to be carried on from Tucson, Ariz., against the Mexican government for the reason that the Yaqui Indians, in leaving the territory of Mexico, ipso facto abandoned their operations against the Mexican government and could only resume them after their return with means to be obtained in the state of Arizona. Their intent to return to that nation for the purpose of further hostilities did not alter the fact that they ceased to exist as a military force upon entering the United States. The expedition, when it entered the United States, was headed in the wrong direction to engage in hostilities in Mexico. The retreating Yaqui Indians were powerless to operate as a military force from Sonora, or from their bases in Mexico; it was only by finding a new source of supplies or a new base that they could become a military expedition. That proposed base was Tucson, Ariz. If and when they secured such means, their return as an organized unit constituted a military expedition from our neutral territory within the meaning of the law, regardless of whether or not they intended themselves to attempt to overturn the government of Mexico or join other forces engaged in that effort. Gandara v. United States, 33 F. (2d) 394, 395 (C. C. A. 9th, 1929); certiorari denied, 280 U.S. 612 (1930). Judge Dietrich in a concurring opinion said: . . . If individual Indians straggled in from Mexico for the purpose of remaining here an indefinite time and procuring ammunition and clothing for themselves with the hope of thereafter returning to Mexico and if defendant thereupon sold to them individually such supplies and did nothing more, it probably would not be contended that he would be guilty of the charge. Accepting commissions RECRUITING AND ENLISTMENT $665 Although article IV of Hague Convention V of 1907 provides that "Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents", it is provided in article VI that "The responsibility of a neutral Power is not engaged by the fact of persons crossing the frontier separating to offer their services to one of the belligerents." 2 Treaties, etc. (Malloy, 1910) 2290, 2298; 36 Stat. 2310, 2323. In the general declaration of neutrality approved at Panamá, on October 3, 1939, it is provided that the American republics: (c) Shall prevent on their respective territories the enlistment of persons to serve in the military, naval, or air forces of the belligerents; the retaining or inducing of persons to go beyond their respective shores for the purpose of taking part in belligerent operations; the setting on foot of any military, naval, or aerial expedition in the interests of the belligerents. Report of the Delegate of the United States of America to the Meeting of the Foreign Ministers of the American Republics, Held at Panamá, September 23-October 3, 1939 (Department of State, Conference Ser. 44, 1940), 55. The United States Criminal Code of 1909 provides: SEC. 9. Every citizen of the United States who, within the territory or jurisdiction thereof, accepts and exercises a commission, to serve a foreign prince, state, colony, district, or people, |