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to commit hostilities against a friendly state, and against whom the hostilities were not to be committed.1
In respect to bodies of insurgents who have not been recognized as Distinction in belligerents it is important to note that there is a distinction in principle interpretation between the use of the words "of any foreign prince or state, or of any colony, district, or people" as describing the political bodies for whose service a vessel may not be fitted out and armed and the use of the same words as describing the political bodies against whom the vessel is intended to commit hostilities. In the latter case, foreign prince, state, colony, district, or people, describe the political bodies towards whom the United States is under an obligation to observe the status of neutrality, and in this connection the words are perhaps more comprehensive than necessary. From the point of view of international law the obligations of the United States do not extend to the repression. of acts committed within its jurisdiction against bodies of insurgents who have not been recognized as belligerents, nor, legally speaking, even to the repression of acts committed against communities whose de facto belligerency has been recognized, but who are not yet legal persons in international law. On the other hand, the friendly relations of the United States would be compromised if hostilities were to be committed within its jurisdiction in the service of any political bodies or persons whatsoever against a recognized foreign state.
As illustrating the comprehensive meaning attached to the words Comprehensive "colony, district, or people" when they refer to political bodies in interpretation. whose service a vessel may not be fitted out and armed, we have the case of the Three Friends decided in 1897. In November, 1896, the steamer Three Friends was seized and libeled on behalf of the United States for having been fitted out and armed in the service of "a certain people" then engaged in armed resistance to the King of Spain in the island of Cuba. On behalf of the owners it was argued that the words "colony, district, or people" applied only to recognized insurgents, and that since the insurgents in Cuba had not yet been recognized by the United States, there was no offense under the statute. Chief Justice Fuller, in delivering the opinion of the court, argued that the word "state" might with reason be held to include recognized belligerents, leaving the words "colony, district, or people" to be applied to unrecognized belligerents. However, even if the word "state" admitted of a less liberal signification, why should the meaning of the words "colony, district, or people" be confined
1See Chap. II, p. 39.
2166 U. S., 1.
only to parties recognized as belligerents? "The word 'people'. taken in connection with the words 'colony' and 'district' covers in our judgment any insurgent or insurrectionary 'body of people acting together, undertaking or committing hostilities,' although its belligerency has not been recognized."
As illustrating the less comprehensive meaning of the words "colony, district, or people" when used to describe the political bodies against whom hostilities must not be committed we have the case of the Carondolet, decided in 1889. In August, 1888, the existing government in Haiti was overthrown and the President of the republic deposed and banished. On December 8th of the same year, President Cleveland in his message to Congress said that "the tenure of power [in Haiti] has been so unstable amid the war of factions that has ensued since the expulsion of President Salomon that no government constituted by the will of the Haytian people has been recognized as administering responsibly the affairs of that country." On February 18, 1889, the Carondolet was libeled for forfeiture for having been fitted out and armed to aid a faction led by Hippolyte against a faction led by Legitime, in the struggle for supremacy then going on in Haiti. In the opinion of the court it was stated as an obiter dictum that "there can be no obligation of neutrality except towards some recognized state or power, de jure or de facto. Neutrality presupposes at least two belligerents; and, as respects any recognition of belligerency, i. e., of belligerent rights, the judiciary must follow the executive. To fall within the statute, the vessel must be intended to be employed in the service of a foreign prince, state, colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of another, with which the United States are 'at peace.' The United States can hardly be said to be 'at peace,' in the sense of the statute, with a faction which they are unwilling to recognize as a government; nor could the cruising, or committing of hostilities, against such a mere faction well be said to be committing hostilities against the 'subjects, citizens, or property of a district or people,' within the meaning of the statute. So, on the other hand, a vessel, in entering the service of the opposite faction of Hippolyte, could hardly be said to enter the service of a foreign 'prince or state, or of a colony, district, or people,' unless our government had recognized Hippolyte's faction as at least constituting a belligerent, which it does not appear to have done." On this latter point only the opinion of the court was overruled by the case 137 Fed. Rep., 799.
of the Three Friends, referred to above. In the same year, and with reference to the same warring factions in Haiti, it was held in the case of the Conserva1 that in order to justify the forfeiture of a vessel under Revised Statutes, Sec. 5283, the fact must be shown that the government against which it is alleged the vessel is intended to commit hostilities has been recognized by the United States.2
In a dissenting opinion in the case of the Three Friends, Justice Harlan argued that the words "colony, district, or people," where they first appear in Sec. 5283, cannot have a different meaning from the same words in the subsequent clause "colony, district, or people, with whom the United States are at peace"; and that the United States cannot properly be said to be "at peace" or not "at peace" with insurgents who have no government except on paper and no power of administration and who are merely nomads. The argument was anticipated by Chief Justice Fuller, who pointed out that the words as used in the two connections are "affected by obviously different considerations," and that "if the necessity of recognition in respect to the objects of hostilities, by sea or land, were conceded, that would not involve the concession of such necessity in respect of those for whose service the vessel is fitted out." The interpretation of Chief Justice Fuller is certainly the one more in accord with the international obligations of the United States.
trality do not
apply to unrecognized insurgents.
It does not follow that because the courts have been willing to in- Duties of neuterpret the phrase "colony, district or people" so as to include bodies of unrecognized insurgents, they thereby intend that the international law of neutrality is to apply to such insurgents. The Neutrality Act is a municipal statute, and the judicial interpretation of its terms does not necessarily imply corresponding obligations in international law. The obligation acknowledged by the United States to prevent its territory from being made the starting point of expeditions in the interest of a body of unrecognized insurgents, should be classed not as an obligation devolving at international law upon the status of neutrality, but as an obligation resulting from the status of peace be138 Fed. Rep., 431.
2In 1869, an opinion was rendered by Attorney General Hoar to the effect that the provisions of Sec. 3 of the Act of 1818 were not applicable to the case of certain gunboats which were being built in New York for the Spanish government and which there was reason to believe were to be employed by that government against insurgents in Cuba. When a nation undertakes to procure vessels for the purpose of enforcing its own recognized authority within its own domains, "in a legal view," said the Attorney General, "this does not involve a design to commit hostilities against anybody." 13 Op. Atty. Gen., 177.
Sec. 4 of Act of
tween the United States and the state against which such an expedition is directed; and it will be shown below1 that Sec. 5286 has been held to apply to cases of expeditions setting out from the United States against a foreign state when there were no conditions of domestic insurrection in that state. In this sense it is possible to explain such statements as that of Attorney General Harmon to the effect that "the rules of international law with respect to belligerent and neutral rights and duties do not apply to the present case. Neither Spain nor any other country has recognized the Cuban insurgents as belligerents."2 But it is submitted that the Attorney General went too far in holding that when a state of war is declared by another country, the United States must of its own motion use due vigilance to prevent, within its borders, the formation or departure of any military expedition intended to take part in such war; but on the other hand, when a state of war is not so declared, "it is by no means certain that knowledge of the existence of a mere insurrection, even when its location or alleged motives may be thought likely to lead to violations of our laws in its behalf, imposes any general duty of watchfulness, the neglect of which would be just ground of complaint by the nation involved which does not itself acknowledge a state of war.' 9:3
With respect to the specific punishment appointed for the persons concerned in the forbidden acts and for the vessel which is their instrument, it may be observed that there is no necessity of joint condemnation at the same time of both persons and vessel. In the case of the Three Friends, it was held that "the contention that forfeiture under United States Revised Statutes Sec. 5283 depends upon the conviction of a person or persons for doing the acts denounced is untenable. This suit is a civil suit in rem for the condemnation of the vessel only, and is not a criminal prosecution. The two proceedings are wholly independent and pursued in different courts, and the result in each might be different."
Arming Vessel to Cruise Against Citizens of the
Sec. 5284. Every citizen of the United States who, without the limits thereof, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly aids or is concerned in furnishing, fitting out, or arming any pri1See p. 82.
221 Op. Atty. Gen., 267.
vate vessel of war, or privateer, with intent that such vessel shall be employed to cruise, or commit hostilties, upon the citizens of the United States, or their property, or who takes command of, or enters on board of any such vessel, for such intent, or who purchases any interest in any such vessel, with a view to share in the profits thereof, shall be deemed guilty of a high misdemeanor, and fined not more than ten thousand dollars, and imprisoned not more than ten years. And the trial for such offense, if committed without the limits of the United States, shall be in the district in which the offender shall be apprehended or first brought.
This section, as was pointed out in Chapter II,1 is based upon the Act of June 14, 1797. In the Act of 1818 that part of the Act of 1797 which related to hostilities committed upon the "subjects, citizens, or property of any prince or state with whom the United States are at peace," was omitted. The rest of the Act was retained, in spite of the fact that with the above clause omitted it had become practically meaningless. A person who fits out and arms a vessel with intent that the vessel shall be employed to commit hostilities upon the citizens of the United States is an accomplice in the crime of piracy, and may be prosecuted accordingly, whether or not he is a citizen of the United States, and whether the fitting out and arming of the vessel took place within or without the jurisdiction of the United States. In any case, the offense defined by the statute as it now stands has no connection with violations of the neutrality of the United States; accordingly, the prohibition of it does not properly come within the scope of laws intended to give effect to the obligations of the United States as a neutral state.2
Augmenting Force of a Foreign Vessel of War.
Has no connection with neutrality.
Sec. 5285. Every person who, within the territory or juris- Sec. 5 of Act of diction of the United States, increases or augments, or procures April 20, 1818. to be increased or augmented, or knowingly is concerned in increasing or augmenting, the force of any ship of war, cruiser or other armed vessel, which, at the time of her arrival within the United States, was a ship of war, or cruiser, or armed vessel, in the service of any foreign prince or state, or of any colony, district or people, or belonging to the subjects or citizens of any such prince, or state, colony, district, or people, the same being at war with any foreign prince or state, or of any colony, district or people with whom the United States are at peace, by adding to the number of the guns of such vessel, or by changing those on 1See p. 30.
2See Chap. IV, p. 141.