Proof of intent

not necessary.

Offenses created.

Restitution of prizes.

board of her for guns of a larger caliber, or by adding thereto any equipment solely applicable to war, shall be deemed guilty of a high misdemeanor, and shall be fined not more than one thousand dollars and be imprisoned not more than one year.

By way of general comment upon this section it is to be observed that as far as the act itself of increasing or augmenting the force of a foreign ship of war is concerned, it might properly be included within the meaning of the term "fits out and arms," used in Sec. 5283. But inasmuch as the ship of war to which the statute applies must be at the time of its arrival in the United States either in the service of a foreign prince or state, etc., or the property of the subjects or citizens of a foreign prince or state, etc., the same being at war with any foreign prince or state, etc., with whom the United States are at peace, it is seen that there is no necessity of proving the intent which constitutes the gravamen of the offense under Sec. 5283. The criminal intent is to be presumed from the fact that the vessel whose force is augmented is clearly to be used to commit hostilities against a foreign state with whom the United States are at peace. It is the absence, therefore, of the necessity of proving with what intent the prohibited acts are done which distinguishes Sec. 5285 from Sec. 5283.

Moreover, this section was designed to provide specifically for definite offenses which were being committed at the time of the passage of the original Act of 1794. Three offenses are defined: the act of increasing or augmenting the force of a ship of war, the act of procuring such increase or augmentation, and the act of being knowingly concerned in such increase or augmentation. The different acts may take any one of three definite forms: an addition to the existing number of guns; the substitution of guns of a larger caliber; and the addition of equipment solely applicable to war. A strict interpretation of the statute would seem to require that any addition to the force of the vessel which does not take one of the above three forms could not be prosecuted under Sec. 5284; but it will be seen below that the courts regarded the three forms of augmentation of force as descriptive rather than as restrictive.

In a number of early cases, prizes captured by foreign privateers which had augmented their force within the United States were restored to their owners. As the prohibited acts were set forth in definite terms, there was little difficulty in passing upon what should constitute an increase or augmentation of force. In one case it was held that

1See The Nancy, 4 Fed. Cases, No. 1,898; The Betty Carthcart, 17 Fed. Cases, No. 9,742.

the repairing of the waist of the vessel, and the cutting of two ports in
it for guns, was not sufficient to constitute an offense under Sec. 5285.1
In the case of Moodie v. The Phoebe Anne, the court refused to re-
store a British vessel brought as prize into the port of Charleston by a
French privateer which had previously made certain repairs in that
port, the repairs having been of a purely nautical character. The fact
that the guns had been taken out during the course of repairs and then
replaced was held not to constitute an augmentation of force. In the
case of the Alerta v. Moran, the court did not consider that the
augmentation of the force of foreign ships of war need necessarily
take one of the forms mentioned in the statute. It was held that the
act of shipping on board certain persons "as an addition to the crew
of the privateer" constituted an illegal increase of the force of the
vessel [L'Epine] and therefore invalidated whatever prizes might be
made by the vessel after her departure from the United States. A
similar decision was rendered in the case of the Santissima Trini-
dad. The court held that "there was an illegal augmentation of the
force of the Independencia in our ports by a substantial increase of
her crew; and this renders it wholly unnecessary to enter into an in-
vestigation of the question, whether there was not also an illegal in-
crease of her armament." In 1844 an opinion was rendered by At-
torney General Nelson, in which he held that the commanders and
officers of vessels of other nations found to have violated this section
of the statute were amenable to the criminal jurisdiction of the United
States courts and might be successfully prosecuted.®

Military Expeditions Against People at Peace
with the United States.

Sec. 2586. Every person who, within the territory or jurisdiction of the United States, begins, or sets on foot, or provides 1See The Brothers, 17 Fed. Cases, No. 9,743.

23 Dall., 319.

3See also an opinion of Attorney General Nelson, in 1844, to the effect that the repair of the bottoms, copper, etc., of certain Mexican war steamers in the port of New York did not constitute an increase or augmentation of their force within the meaning of the act of 1818. 4 Op. Atty. Gen., 336.

49 Cranch, 359.

57 Wheat., 283.

64 Op. Atty. Gen., 336. "I am further of opinion, that the steamers themselves are not subject to seizure by any judicial process under the act of Congress; but that their commanders and officers are amenable to the criminal jurisdiction of our courts for violations of the statute in question. The very purpose of the act would be defeated were it otherwise; and there is no principle of which I am aware which exempts from responsibility for criminal acts, within our jurisdiction, the commanders or officers of ships-of-war of other nations with whom we are at peace." The opinion of the attorney general is not in accord with international law of the present day. See Moore, II, §256.

Sec. 6 of Act of
April 20, 1818.

Bodies to which

applicable.

or prepares the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any 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 exceeding three thousand dollars, and imprisoned not more than three years.

Before considering the different acts which constitute an offense under this section, attention must be called to the fact that there is no mention in the statute of the foreign political bodies in whose service the military expedition might be set on foot. Hence, in the case of expeditions in the service of insurgent bodies in revolt against a state with which the United States might be at peace, no question could arise as to whether the insurgents had been recognized by the United States as belligerents, so that the earlier interpretation of that point in Sec. 5283 had never any application to this section. The statement made in the recent case of Wiborg v. United States,1 that the operation of the statute was "not necessarily dependent on the existence of such state of belligerency," must be assumed to have been made with reference to the political bodies in whose service the expedition was set on foot; and was evidently not meant to apply to political bodies against whom the expedition was organized, since in a later case2 Chief Justice Fuller, who delivered both opinions, deliberately refrained from holding that there was no necessity of recognizing a status of belligerency with respect to the parties against whom hostilities are committed.

The statute, indeed, does not by its terms require the existence of a state of war in a foreign country. Hence, although it was originally enacted as part of a general act in fulfilment of the neutral duties of the United States, it has been made to apply to cases where armed expeditions were set on foot in the United States for the invasion of a foreign state, even when there were no conditions of domestic insurrection in such foreign state. In the case of United States v. O'Sullivan, it was contended by the defendants that the Neutrality Acts of 1794 and 1818 were "intended to have operation only in case of war between nations in amity with the United States" and consequently that they did not apply to an expedition not set on foot in the interest of one belligerent party against another. In answer, the

1163 U. S., 632.

2The Three Friends, 166 U. S., 1.

827 Fed. Cases, No. 15,974.

court held that the Act of 1794 "was called for and always accepted and enforced as a law, no less of non-interference by our citizens-by military expeditions against nations at peace with all the world, than one prohibiting acts of hostility in favor of any belligerent power against another at peace with the United States."1

The offenses under the statute are defined disjunctively. A very Distinct offenses careful analysis of the several acts which constitute an offense was created. made in a charge to the grand jury by Judge McLean,2 delivered in 1851 with reference to a recent military expedition against Cuba. “To 'begin' the military expedition .. is to do the first act which may lead to the enterprise. The offense is consummated by any overt act which shall be a commencement of the expedition, though it should not be prosecuted. . . To set it on foot may imply some progress beyond that of beginning it. Any combination of individuals to carry on the expedition is 'setting it on foot,' and the contribution of money or anything else which shall induce such combination, may be a beginning of the enterprise. 'To provide the means for such an enterprise,' is within the statute. To constitute this offense, the individual need not engage personally in the expedition. If he furnish the munitions of war, provisions, transportation, clothing, or any other necessaries, to men engaged in the expedition, he is guilty." However, in an indictment for any of the above acts the principle holds that some overt act is necessary to secure conviction. In the case of United States v. Lumsden, the court stated that "no proposition can be clearer than that some definite act or acts, of which the mind can take cognizance, must be proved to sustain the charges against these defendants. Mere words, written or spoken, though indicative of the strongest desire and the most determined purpose to do the forbidden act, will not constitute the offense." Some "distinctive substantive fact" must be proved. Moreover, it was held that

1See also a letter of Secretary of State Bayard on July 31, 1885, to the Spanish minister, in which he says that "the phrase 'neutrality act' is a distinctive name, applied for convenience sake merely, as is the term 'foreign enlistment act' to the analogous British statute. The scope and purpose of the act are not thereby declared or restricted. The act itself is so comprehensive that the same provisions which prevent our soil from being made a base of operations by one foreign belligerent against another likewise prevent the perpetration within our territory of hostile acts against a friendly people by those who may not be legitimate belligerents, but outlaws in the light of the jurisprudence of nations. There is and can be no 'neutrality' in the latter case." For. Rel., 1885, 776-777. The same point is made in an opinion of Attorney General Harmon, 21 Op. Atty. Gen., 267.

230 Fed. Cases, No. 18,267.

426 Fed. Cases, No. 15,641.

What constitutes dition."

if the proof shows "that means were procured, to be used on the occurrence of some future contingent event, no liability is incurred under the statute." The following acts, among others, have been held to come within the statute: The enlistment of men for the expedition, the contribution of money, clothing, provisions, arms, etc.,2 the furnishing of transportation for the troops so collected.3

1

With respect to the determination of what constitutes a military a "military expe- expedition or enterprise, there are a number of cases setting forth in detail the precise acts and the circumstances under which they must be performed. The two important points requiring determination are, first, what number of men and what extent of organization among them is necessary to constitute an "expedition"; and secondly, how far must this body of men have arms and ammunition in their possession in order to stamp the expedition as a "military" one? On the first point, we have the case of United States v. Ybanez, decided in 1892, holding that "this statute does not require any particular number of men to band together to constitute the expedition or enterprise one of a military character. There may be divisions, brigades, and regiments, or there may be companies or squads of men. Mere numbers do not conclusively fix and stamp the character of the expedition as military or otherwise. A few men may be deluded with the belief of their ability to overturn an existing government or empire, and, laboring under such delusion, they may enter upon the enterprise." In the case of United States v. Wiborg, it was held that "it is not necessary that the men shall be drilled, put in uniforms, or prepared

130 Fed. Cases, No. 18,267.

2United States v. O'Sullivan, 27 Fed. Cases, No. 15,975.

United States v. Murphy, 84 Fed. Rep., 609.

453 Fed. Rep., 536.

"In contrast with this decision there is an opinion rendered in 1894 by Attorney General Olney. In a letter replying to a request from the Spanish minister for the prosecution of Ochoa, who was charged with having organized a gang of bandits in the United States to commit depredations against Mexico, the acting Secretary of State of the United States quoted an opinion of the Attorney General to the effect that "this law [the Neutrality Act] clearly is directed against the invasion of foreign territory by organized military bodies for the purpose of conducting military operations against the foreign government in its political capacity," the conclusion being that the law was not applicable to common criminals like Ochoa and his associates. Later, however, when the Spanish minister had pointed out that persons had, on previous occasions, been tried and sentenced by the Federal courts for leading expeditions similar to that of Ochoa, the attorney general signified his readiness to prosecute such persons upon being furnished with tangible evidence of a violation of the neutrality laws. For. Rel., 1894, 428; Moore, Int. Law Digest, VII, 933-934.

673 Fed. Rep., 159.