CHAPTER III.

THE AUTHORITATIVE INTERPRETATION OF THE NEUTRALITY
LAWS OF THE UNITED STATES.

In this chapter the attempt will be made to set forth the precise scope of the neutrality laws of the United States by an examination of the technical interpretation given them in the decisions of the federal courts, the opinions of the Attorneys General, the correspondence of the State Department with foreign governments, and other official documents. Before taking up the individual sections of the Revised Statutes, attention may be called to certain points of general criticism.

The neutrality laws, in so far as their provisions are penal in Rule of strict character, are subject to the rule governing all criminal statutes, that construction. they must be interpreted within the strict limits of the wording of the statute, and are to be construed in favor of the accused, who is given the benefit of any doubts as to their meaning. In the case of the Three Friends,1 the District Court, in commenting upon an extension of the statute to a case to which it was clearly desirable to apply it, said: "This statute is a criminal and penal one, and is not to be enlarged beyond what the language clearly expresses as being intended. It is not the privilege of courts to construe such statutes according to the emergency of the occasion, or according to temporary questions of policy, but according to principles considered to have been established by a line of judicial decisions."

The principle is sound, although the application of it was overruled on appeal. The rule of strict construction does not, however, forbid a construction of the statute in connection with and in the light of other provisions of other statutes relating to international subjects, when such provisions throw light upon the probable intent of the language used. Moreover, since the authority of Congress to enact criminal statutes for the preservation of the neutral relations of the United States with other nations is based upon the clause of the Constitution empowering Congress to define and punish offenses against the law of nations, it is permissible to resort to the rules of

178 Fed. Rep., 175; see also The Carondolet, 37 Fed. Rep., 799; The Itata, 56 Fed. Rep., 505.

2See The Itata, 56 Fed. Rep., 505.

Sec. 1 of Act of
April 20, 1818.

Applies to citizens only.

Proof of overt act essential.

By whom commission may be conferred.

international law to obtain light on the construction of the municipal statutes enacted to give effect to that law.

In the following examination of the scope of the neutrality laws the chief stress will be laid upon the positive character of the laws, as prohibiting certain definite acts, and only incidental reference will be made to the acts not covered by them, since these latter will form the subject of a separate chapter. The laws will be examined section by section, in the order of their position in the Revised Statutes.

Accepting a Foreign Commission.

Sec. 5281. 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, in war by land or by sea, against any prince, state, colony, district, or people, with whom the United States are at peace, shall be deemed guilty of a high misdemeanor, and shall be fined not more than two thousand dollars, and imprisoned not more than three years.

The law is limited in its applicaton to citizens of the United States and does not apply to all persons indiscriminately. A foreigner not owing allegiance to the United States could accept a commission in the service of his own country or any other country without being liable to prosecution.

In order to constitute the offense as defined, the commission must be accepted and exercised. The two acts go together and the mere acceptance alone of a commission is not sufficient to subject a citizen. to prosecution. In a charge to the grand jury delivered in 1838 by Judge McLean at the time of the insurrections in Canada, it is stated that "some overt act, under the commission, must be done; such as raising men for the enterprise, collecting provisions, munitions of war, or any other act which shows an exercise of the authority which the commission is supposed to confer." It would seem, however, that the mere acceptance of a commission might properly have been held as equivalent to an enlisting of oneself in the service of a belligerent, and so forbidden under Sec. 5282.

The clause "to serve a foreign prince, state, colony, district, or people," as was pointed out in the preceding chapter, was added by way of amendment to the original Act of 1794 which read, "to serve a foreign prince or state." It was meant to be all-comprehensive, so as to include any political body in whose service a commission might

130 Fed. Cases, No. 18,265.

be accepted against a friendly state. The comprehensive interpretation placed upon this clause has been generally given with reference to indictments under Sec. 5283, and will be discussed in that connection. It may be observed, however, that in the charge to the grand jury referred to above, Judge McLean held that "the commission may be conferred by any district of country, or association of people, whose right to confer it shall be recognized by the person appointed. And it is immaterial whether the commission has been conferred by the popular voice, or by the representatives of such district, or association of people." Accordingly, the acceptance and exercise of a commission. to serve a body of insurgents who are sufficiently organized to issue such a commission would come within this interpretation of the statute.1

Passing now to a consideration of the section as a whole, it may appear that inasmuch as the words "accepts and exercises a commission" require some overt act done in pursuance of the commission, the offender could equally well be prosecuted under subsequent sections which define the acts held to be in violation of the neutrality of the United States by whomsoever committed. There are, however, certain acts which might be performed in the service of a belligerent by a person holding a commission under such belligerent, but which are not covered by other sections of the statute. In the exercise of a commission a person would be subject to prosecution for collecting money, arms, or provisions in the interest of the belligerent he is serving; whereas these same acts, if performed independently of a commission, would not be unlawful. Whether owing to the difficulty of proving the acceptance of a commission, or from the fact that the acts committed in the exercise of a commission have been connected with military expeditions and were, therefore, indictable under Sec. 5286, there has been apparently but one prosecution by the United States under the section here considered.2

Enlisting in Foreign Service.

Sec. 5282. Every person who, within the territory or jurisdic- Sec. 2 of Act of tion of the United States, enlists or enters himself, or hires or April 20, 1818. retains another person to enlist or enter himself, or to go beyond

1This holding was later denied by the court in the case of the Carondolet, 37 Fed. Rep., 799, but still later reaffirmed in the case of the Three Friends, 166 U. S. 1; see below, pp. 75-76.

2In 1797, Isaac Williams was tried in the District Court of Connecticut for accepting a commission under the French republic, and, under the authority thereof, committing acts of hostility against Great Britain. The defendant's plea that he had expatriated himself was overruled and he was found guilty, fined and imprisoned. 2 Cranch, 82, note.

Offenses created.

Leaving country with intent to enlist no offense.

the limits or jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people, as a soldier, or as a marine or seaman, on board of any vessel of war, letter of marque, or privateer, shall be deemed guilty of a high misdemeanor, and shall be fined not more than one thousand dollars, and imprisoned not more than three years.

The law applies to all persons within the territory or jurisdiction of the United States and makes no discrimination between citizens and aliens. Three distinct offenses are created, the first consisting in the act by which a person enlists or enters himself in the service of a foreign state, the second and third, which are coupled together, consisting in the acts of hiring or retaining others to enlist in the said service, or to go beyond the limits of the United States with intent to be so enlisted. The technical interpretation to be placed upon the terms of this section is set forth very clearly in two opinions rendered in the year 1855. At that time, Great Britain was employing agents to carry on a recruiting service in the United States with the object of increasing the ranks of her army in the war against Russia.1 In order to avoid prosecution under the above section of the neutrality laws, the attempt was made in some cases to carry persons to Halifax under false pretenses, and in other cases to persuade persons to leave the United States without receiving pay with the understanding that they would be paid upon the performance of the service desired. In the case of United States v. Hertz, the judge, in charging the jury, said: "Every resident of the United States has a right to go to Halifax and there to enlist in any army that he pleases; but it is not lawful for a person to engage another here to go to Halifax for that purpose." That is to say, with respect to the enlisting of oneself in the service of a foreign state, the act of enlistment, to constitute an offense, must take place within the jurisdiction of the United States, while with respect to the hiring of others to enlist, the offense is complete if the person so hired leaves the United States "having the intention to enlist when he arrives out, and that intention known to the party hiring him, and that intention being a portion of the consideration before he hires him." With respect to the method of hiring or retaining, the judge stated that "the hiring or retaining does not necessarily include the payment of money on the part of him who

1See the message of President Pierce to Congress on December 31, 1855, Richardson's Messages, V, 333; also, Papers Relating to the Treaty of Washington, I, 534-626.

226 Fed. Cases, No. 15,357.

hires or retains another. He may hire or retain a person with an agreement that he shall pay wages when the service shall have been performed." Likewise, "a person may be hired or retained to go beyond the limits of the United States, with a certain intent, though he is only to receive his pay after he has gone beyond the limits of the United States with that intent." It is not necessary that the consideration of the hiring shall be money.

taining.

In the case of United States v. Kazinski, the word "retains" What constitutes. was declared to be equivalent to "an ‘engaging' of one party by the hiring and reother, with the consent and understanding of both." The element of consent is thus commented upon: "To constitute the offence of enlisting here, it requires the consent of the party enlisting; and so also the hiring or retaining a person to go abroad with intent to be enlisted, requires assent and intent on the part of the person hired or retained." The act of hiring or retaining may be performed by agents, but it must be shown that the agents are employed for this specific purpose and are acting under the defendant. The captain of a vessel might be aware that the passengers he is transporting for hire were leaving the United States for the purpose of enlisting abroad, but this knowledge on his part would not constitute an offense under the statute. With respect to the evidence required in proof of an intent to enlist, it may be gathered from the conduct and declarations of the person both within the United States and after he has reached the foreign country. With respect to the testimony admissible, it was held in both of the above cases that in a prosecution for retaining others to enlist, the persons so retained could testify to an intent to enlist in a foreign country without thereby incriminating themselves. "It is the law of the land that, where two or more persons combine together to do an unlawful act, the acts of each may be given in evidence for the purpose of explaining the general transaction."

It would seem that the act of enticing others by false pretences to leave the United States with the intent on the part of the person enticing them that they shall enlist when abroad, but without intent on their part so to enlist, does not apparently come within the statute. In the case of United States v. Kazinski it was held that "the hiring and retaining here, and the intent with which they were so hired or retained, must be proved. These parties may have been deceived and betrayed in their supposed voyage to Halifax to obtain work. If the

126 Fed. Cases, No. 15,508.

2United States v. Hertz, 26 Fed. Cases, No. 15,357.

3Ibid.