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Unarmed, unorganized groups

In reply to a note from the Mexican Chargé d'Affaires calling attention to the "constant passing of men and war material" from El Paso to a Mexican point, Secretary Knox said that—

the passing of men from the United States into Mexico either singly or in unarmed and unorganized groups, unless constituting an expedition or a part of an expedition fitted out from this country can not be regarded as in violation either of the laws of neutrality or of the provisions of the Federal statutes.

The Mexican Chargé d'Affaires ad interim (Pereyra) to the Secretary of State (Knox), no. 1219, Apr. 9, 1911, and Mr. Knox to Señor Pereyra, Apr. 19, 1911, MS. Department of State, file 812.00/1284; 1911 For. Rel. 451, 461. When the Mexican Embassy, during a period of revolutionary disturbances in Mexico, complained because of the arrest in the United States of certain Mexican citizens who were departing from the United States for Lower California to take part in defense of that territory against filibusters, Secretary Knox said in the course of his reply:

Again I should call Your Excellency's attention to the fact that in international law and under the Federal Statutes of this Government a very wide difference exists on the one hand between the passage of men singly and in small groups across our frontier and into another country, or the sailing of individuals or small groups in the ordinary course of events from one of our ports, and on the other hand the departure from our territory of organized groups of men avowing the purpose of undertaking belligerent activities in foreign territory.

It would appear from the information furnished by you to the Attorney-General that the men of whose arrest you complain were more or less regularly enlisted for the Mexican service within the jurisdiction of the United States, that is, in San Diego, California, and being so enlisted constituted an expedition organized within American territory. Whether or not the organization of such an expedition under the circumstances of this case constitutes a violation of the so-called "neutrality statutes" of the United States is a question the determination of which is by the Constitution of the United States placed in our courts.

In this connection I must again repeat to Your Excellency that not only is there no rule of international law requiring, and no local Federal statute that would permit, the Federal officials of this Government to prevent the passage into foreign territory of unarmed and unorganized men either singly or in groups, but on the contrary it is an express provision of international law that the responsibility of a neutral power is not engaged even in time of recognized war by the fact of persons crossing the frontier separately to offer their services to one of the belligerents; and as to the mandates of municipal law, the courts of the United States have repeatedly declared that our neutrality statutes do not forbid one or more individuals singly or in unarmed, unorganized groups from leaving the United States for the purpose of joining in any military operations which are being carried

on between other countries or between different parties in the
same country.

The Mexican Ambassador (Zamacona) to the Secretary of State (Knox),
May 27, 1911, and Mr. Knox to Señor Zamacona, no. 47, June 7, 1911, MS.
Department of State, file 812.00/1984; 1911 For. Rel. 494, 501-502.

On August 13, 1914 Secretary Bryan informed the French Chargé d'Affaires that

no resistance, within the knowledge of this Department, has been offered to reservists in the army of any of the belligerents Reservists wishing to leave this country for military service in their native lands, whether such reservists leave singly or in numbers. It is believed that the only restriction upon the departure of citizens of any of the countries at war for service in the army is to be found in the neutrality laws of the United States, embodied in the proclamation of the President, prohibiting the "beginning or setting on foot or providing or preparing the means for any military expedition or enterprise to be carried on from the territory or jurisdiction of the United States against the territories or dominions of either of the said belligerents." What constitutes a military expedition or enterprise either begun or set on foot in this country has been the subject of some judicial determination by the courts of the United States; and, while it is not deemed necessary to point to these decisions at this time, it may be said generally that return from the United States to their native lands by citizens of foreign countries, though to enter military service there, whether their departure is singly or in numbers, is not illegal or in violation of the neutrality of the United States, unless accompanied by other circumstances evidencing the beginning or setting on foot, or providing or preparing the means for a military expedition or enterprise from the territory or jurisdiction of the United States against the territories or dominions of one of the belligerents. It is the purpose of this Government to observe complete neutrality in the war now being waged by European countries; but it is not deemed necessary to adopt means or to apply regulations which are not demanded by the neutrality laws of the United States or the rules of international law.

The Secretary of State (Bryan) to the French Chargé d'Affaires ad interim (Clausse), no. 1367, Aug. 13, 1914, MS. Department of State, file 763.72111/301; 1914 For. Rel. Supp. 557, 558-559.

On Aug. 6, 1914 the Department of Commerce telegraphed the collector of customs at New York that clearance must be granted to vessels carrying supposed reservists when they went as individuals and not as an organized military body. The Acting Secretary of Commerce (Sweet) to Mr. Bryan, Aug. 7, 1914, MS. Department of State, file 763.72111/297; 1914 For. Rel. Supp. 556.

With respect to the contention that the departure of a former officer of the United States Army to instruct French soldiers in

440083-43-vol. VII- -27

Ex-officers
of U.S. Army

dropping bombs from aircraft differed from the ordinary case of enlistment in a foreign army, the Department of State said:

Assuming that Mr. Scott is an ex-officer of the United States Army; that he is an expert at bomb-dropping from aircraft and has designed an efficient apparatus therefor; that he has tendered his services to France, cabling from the United States; that the French War Office has accepted his tender; and that he is about to sail for Europe with his apparatus in pursuance of his accepted tender, I beg to advise you that the Department is of the opinion that, while Mr. Scott may be acting contrary to the wishes of the President contained in his address to the American people enjoining neutrality, he is not offending against the neutrality laws of this country or the treaties on the subject between the United States and other powers. The Department understands that the circumstances of Mr. Scott's case do not constitute an "enlistment or entry" as a soldier or as a marine or seaman in the service of a foreign state, in violation of the neutrality statutes of the United States. In this situation the Government would hardly feel authorized to take any steps on the facts stated to, and understood by, the Department, to prevent the contemplated action of Mr. Scott.

In this relation it may be pointed out that, as under the generally accepted principles of international law citizens or subjects of a neutral nation are not prohibited from entering the military service of a belligerent, it has been a common practice in the past for aliens to engage in foreign military service without compromising the neutrality of their government.

The German Ambassador (Count von Bernstorff) to the Secretary of State (Bryan), Sept. 23, 1914, and the Counselor for the Department of State (Lansing) to Count von Bernstorff, Oct. 6, 1914, MS. Department of State, file 763.72111/212; 1914 For. Rel. Supp. 561, 562, 563.

Secretary Lansing said that he saw no violation of the neutrality laws of the United States in an undertaking by an ex-officer of the United States Army to instruct troops in Canada, so long as he did not, within the jurisdiction of the United States, accept and exercise a commission.

Secretary Lansing to Representative Gardner, Feb. 15, 1916, MS. Department of State, file 763.72111/3422.

The Department of State took the position that an alien physician resident in the United States, who had declared his intention to become a citizen, might serve as a physician in the Canadian Red Cross during the war, without violation of the neutrality laws of the United States. The Legal Adviser of the Department of State (Hackworth) to Dr. B. L. Grodnitzky, Oct. 28, 1939, MS. Department of State, file 740.00111A Recruiting/39. When the American Legion Department of France wished to organize an "American Legion Ambulance Corps" after the outbreak of war in Sept. 1939, the Department of State took the position that it could not properly express any objection to the proposal, in view of the fact that no American statutes prohibited such activities and that they were to take place outside

the jurisdiction of the United States. The Ambassador to France (Bullitt) to the Secretary of State (Hull), telegram 1827, Sept. 7, 1939, and Mr. Hull to Mr. Bullitt, telegram 816, Sept. 7, 1939, MS. Department of State, file 740.00111A Recruiting/11; the Under Secretary of State (Welles) to Frank E. Samuel, Sept. 13, 1939, ibid. /17.

tionals in

During the World War of 1914-18, while the United States was Neutral naneutral, the German Government indicated that if Americans serving belligerent in the French Army should be captured they might be shot as civil- forces ians and not held as prisoners of war. The Counselor for the Department of State said that

it had always been the right of individuals to enter the army of a foreign nation and that never . . . had these foreigners, when captured, been treated otherwise than as prisoners of

war.

Memorandum of the Counselor for the Department of State (Lansing), Aug. 22, 1914, MS. Department of State, file 763.72111/812; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 26. Mr. Lansing added that

"If such a course was followed, it would be entirely unwarranted by international usage, and . . . this Government would not view such treatment of Americans with indifference, for, although its policy was to discourage its citizens from enlisting in foreign military service, it had always recognized their right to do so." Ibid.

Cf. Borchard, "The Power To Punish Neutral Volunteers in Enemy Armies", 32 A.J.I.L. (1938) 535.

A neutral cannot avail himself of his neutrality:

(b) If he commits acts in favour of a belligerent, particularly if he voluntarily enlists in the ranks of the armed force of one of the parties.

In such a case, the neutral shall not be more severely treated by the belligerent as against whom he has abandoned his neutrality than a national of the other belligerent State could be for the same act.

Hague Convention V of 1907, art. XVII, 2 Treaties, etc. (Malloy, 1910) 2290, 2299; 36 Stat. 2310, 2325-2326.

FITTING OUT, ARMING, OR AUGMENTING FORCE OF VESSELS

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Article VIII of Hague Convention XIII of 1907 provides:

A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a Power with which that

Fitting out and arming of vessel

Government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted entirely or partly within the said jurisdiction for use in war.

2 Treaties, etc. (Malloy, 1910) 2352, 2359; 36 Stat. 2415, 2428.

Article 4 of the convention on maritime neutrality concluded at Habana in 1928 provides in part that a belligerent state is forbidden:

"a) To make use of neutral waters as a base of naval operations against the enemy, or to renew or augment military supplies or the armament of its ships, or to complete the equipment of the latter." 4 Treaties, etc. (Trenwith, 1938) 4743, 4745; 47 Stat. 1989, 1991.

The general declaration of neutrality approved at Panamá on October 3, 1939 provides that the American republics shall prevent

the fitting out, arming, or augmenting of the forces or armament of any ship or vessel to be employed in the service of one of the belligerents, to cruise or commit hostilities against another belligerent, or its nationals or property.

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. Article 46 of the rules drawn up at The Hague in 1923 lays a similar duty upon neutral governments with respect to aircraft. Commission of Jurists To Consider and Report Upon the Revision of the Rules of Warfare (The Hague, 1923) 264. See also Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), art. 99, 33 A.J.I.L. Supp. (1939) 770.

Section 11 of the United States Criminal Code of 1909 makes it unlawful for any person within the territory or jurisdiction of the United States to fit out and arm, or to attempt to fit out and arm, or to procure "to be fitted out and armed ... any vessel, with intent that such vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace”, and provides a penalty of "not more than ten thousand dollars and [imprisonment for] not more than three years"; also for forfeiture of "such vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores which may have been procured for the building and equipment thereof one half to

the use of the informer and the other half to the use of the United States",

35 Stat. 1088, 1090; 18 U.S.C. §23.

This section was held applicable when the vessel was to be used against a government which had not been recognized by the United States. The

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