Inasmuch as it is not an offense against the neutrality laws of the United States for individual citizens to leave the country with intent to enlist in a foreign army when they have arrived abroad, it is permissible for them, as a necessary condition of their departure, to go in company with one another, provided they are not so organized as to constitute an "armed expedition" within the terms of Sec. 5286.1 They may even charter a steamer for the purpose of facilitating their passage abroad, if, in other respects, their acts are innocent.2

The statute requires that the enlistment as a marine must be to Service on comserve on board of any "vessel of war, letter of marque or privateer," mercial vessels. so that it would seem to be lawful for American sailors to engage their services upon belligerent commercial vessels. In an opinion rendered in 1796, Attorney General Lee held that if foreign sovereigns "purchase ships in the United States, and load them with provisions for the use of their fleets or armies, those ships are to be considered as commercially employed," and "if they be not attached to the naval or military expeditions, as part thereof, in accompanying the fleet, or closely following the army from place to place, for the purpose of furnishing [them with] supplies, there can be no pretext for restraining the American sailors from hiring on board of them, for the purpose of gaining a support in their customary way of occupation."

It may be noted that the act of soliciting others to go without the limits of the United States to enlist in the service of a foreign state is not covered by the statute. It is difficult to see how a mere solicitation, unaccompanied by a contractual agreement of any kind, whether executed or executory, could be prohibited consistently with the freedom of speech guaranteed by the Constitution, unless the act itself of going without the limits of the United States to enlist in such service were to be made criminal.*

Arming Vessels against People at Peace

with the United States.

Sec. 5283. Every person who, within the limits of the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out, or arming, of 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 1United States v. Nunez, 82 Fed. Rep., 599. 2United States v. O'Brien, 75 Fed. Rep., 900. $1 Op. Atty. Gen., 63.

4See Chap IV, pp 126-127.

Sec. 3 of Act
of April 20, 1818.

Distinct offenses created.

any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, or who issues or delivers a commission within the territory or jurisdiction of the United States, for any vessel, to the intent that she may be so employed, shall be deemed guilty of a high misdemeanor, and shall be fined not more than ten thousand dollars and imprisoned not more than three years. And every 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, shall be forfeited; one-half to the use of the informer, and the other half to the use of the United States.

This section, like the preceding one, applies to all persons within the limits of the United States without discrimination between citizens and aliens. The distinct acts which it enumerates as criminal are well defined in the case of the Meteor.1 In January, 1866, this vessel was libeled by the United States for forfeiture for having been fitted out in the service of the government of Chile to commit hostilities against the government of Spain. The owners sought to prove that the mere furnishing and fitting out of a vessel, provided it were not armed, was not sufficient to constitute an offense under the statute. The court described the several offenses constituted by the statute as follows: "The offences set out in the section must have been committed within the limits of the United States, and are properly classified thus: First. The fitting out and arming by any person of any vessel, with the intent on the part of such person, that she shall be employed in the service of any foreign state, or of any people, to cruise or commit hostilities against the subjects, citizens or property of any foreign prince or state, or of any people, with whom the United States are at peace. Second. The attempting by any person to fit out and arm any vessel with the like intent. Third. The procuring by any person to be fitted out and armed, any vessel with the like intent. Fourth. The being knowingly concerned by any person in the furnishing of any vessel with the like intent. Fifth. The being knowingly concerned by any person in the fitting out of any vessel with the like intent. Sixth. The being knowingly concerned by any person in the arming of any vessel with the like intent. Seventh. The issuing or delivering by any person of a commission, within the territory or jurisdiction of the United States, for any ship or vessel, to the

117 Fed. Cases, No. 9,498. On appeal to the Circuit Court, the decision of the District Court was reversed as to the sufficiency of the evidence, without, however, impairing the definition quoted in the text.

intent that she may be employed as aforesaid. If any one of these offences has been committed, the vessel in respect to which it is committed is, with her tackle, etc., to be forfeited."

With respect to the above classification, it will be noted that under Arming vessel the first three headings the two acts of fitting out and arming are not necessary. joined together as one act, so that it would seem to follow that the mere fitting out alone, whether directly done or attempted to be done, or procured to be done, could not be considered as a separate offense if the vessel were not armed. This conclusion was maintained in an earlier case, but was later repudiated. In the case of United States v. Skinner,1 decided in 1818, it was held that "no offence could be committed against the third section of the act, unless the vessel was armed, as well as fitted out, with intent to be employed, etc." And since the case of the principal must govern that of the accessory, it was held "those, therefore, who were knowingly concerned in the furnishing, fitting out, or arming of such ship or vessel, must also be considered as innocent, until an actual armament took place, or this absurdity would result, that one man might have a vessel built and fitted out for this purpose without being guilty of any offence, while the whole penalty of the law might be incurred by a person who should furnish her with a single suit of sails, or a cable." But in the case of United States v. Quincy, decided in 1832,2 a contrary decision was rendered on the latter point. The defendant was charged with being "knowingly concerned in the fitting out of a certain vessel called the Bolivar," etc. In answer to the contention of the defendant's counsel that the fitting out must be of a vessel armed and in a condition to commit hostilities, otherwise the minor actor might be guilty where the greater was not, the court held: "If this construction of the act be well founded, the indictment ought to charge that the defendant was concerned in fitting out the Bolivar, being a vessel fitted out and armed, etc. But this, we apprehend, is not required. It would be going beyond the plain meaning of the words used in defining the offence." In the case of the Meteor, referred to above, the court denied the necessity of the double act of fitting out and arming even in the case of the principal actors directly engaged in preparing the vessel. The court reasoned as follows: "The mischief against which the statute intended to guard was not merely preventing the departure from the United States of an armed vessel, but the departure of any vessel intended to be em

127 Fed. Cases, No. 16,309.

26 Pet., 445.

317 Fed. Cases, No. 9,498.

Extent of equipment.

ployed in the service of any foreign power, to cruise or commit hostili-
ties against any foreign power with whom the United States are at
peace. The neutrality of the government of the United States, in a
war between two foreign powers, would be violated quite as much
by allowing the departure from its ports of an unarmed vessel with
the clear intent to cruise or commit hostilities against one of the bel-
ligerents, as it would be by permitting the departure from its ports
of an armed vessel with such intent.
It would be a very

forced interpretation of the statute to say that it was not an offence
against it to knowingly fit out a vessel with everything necessary
to make her an effective cruiser, except her arms, and with the intent
that she should become such a cruiser, because it could not be shown
that there was any intent that she should be armed within the United
States." The court then went on to quote an obiter dictum from the
case of United States v. Quincy to the effect that "it is true, that
with respect to those who have been denominated at the bar the chief
actors, the law would seem to make it necessary that they should
be charged with fitting out and arming. The words may require
that both shall concur, and the vessel be put in a condition to com-
mit hostilities in order to bring her within the law; but an attempt
to fit out and arm is made an offense. This is certainly doing
something short of a complete fitting out and arming.
Any
effort or endeavor to effect it will satisfy the term of the law." This
interpretation of the statute, though doubtless required by the new
conditions which had arisen at the time that the decision was ren-
dered, was not in accord with the intention of the framers of the act,
and was scarcely the strict interpretation proper to a penal statute.
The court, in fact, admitted in both cases that "the act in this respect
may not be drawn with very great perspicuity."

.

It is not necessary, of course, that the vessel shall have been originally built with the object of being used to commit hostilities. In the case of United States v. Guinets the court held that "converting a ship from her original destination, with intent to commit hostilities; or in other words, converting a merchant ship into a vessel of war, must be deemed an original outfit; for the act [of 1794] would otherwise, become nugatory and inoperative."

With respect to the extent of equipment necessary to constitute a fitting out of the vessel, it will be seen from the opinion above quoted 16 Pet., 445.

217 Fed. Cases, No. 9,498.

82 Dall., 321. See above, p. 28.

that complete equipment is not necessary. Later decisions interpret the statute even more liberally. In the case of the City of Mexico,1 decided in 1886, the court said: "This vessel was furnished and fitted out, in the usual acceptation of the terms, provided with the necessary supplies, and put in a condition for proceeding to sea, within the United States. Whether she was well furnished or thoroughly fitted out is not the question, if she was so supplied as to proceed on her way." In the case of the Laurada,2 decided in 1898, the court held that "it is not necessary to a forfeiture that the furnishing, fitting out or arming of a vessel for the prohibited purpose should be completed within the limits of the United States. It is sufficient that, by prearrangement within the limits of the United States, the vessel having been procured here, the furnishing, fitting out or arming is to be effected or completed after she has gone beyond those limits." It might even happen that a vessel which had not actually been armed within the limits of the United States could be held to have been so armed if its armament were furnished it on the high seas under an agreement to that effect made within the United States. In the case of the Carondolet, decided in 1889, it was held, though as an obiter dictum, that "when the arming is on the high seas, through another vessel, proof that both were despatched from our ports as parts of a concerted scheme made here, is justly held proof of 'an attempt, within the limits of our jurisdiction, to fit out and arm' the vessel with intent to commit hostilities, and hence within the statute." In this connection it may be noted that arms and ammunition on board a vessel intended for the equipment of another vessel which has been fitted out in violation of our neutrality laws are subject to seizure, even though the delivery has never been completed; but the vessel transporting such arms and ammunition is not liable to forfeiture."

3

The next point to which attention must be drawn is the intent with Intent required by statute. which the several acts above defined must be performed. The statute requires that the acts of fitting out and arming, etc., must be done with intent to commit hostilities, thus distinguishing between the ordinary business of ship-building and the unlawful practice of preparing vessels to be used against a friendly state. The question as to the existence of this intent has been a source of much difficulty for the

128 Fed. Rep., 148.

285 Fed. Rep., 760.

337 Fed. Rep., 799.

4United States v. 214 Boxes Arms, etc., 20 Fed. Rep., 50.

The Itata, 56 Fed. Rep., 505.