for efficient service; nor that they shall have been organized as or according to the tactics or rules which relate to what is known as infantry, artillery or cavalry; it is sufficient that they shall have combined and organized here to go there and make war on the foreign government, and have provided themselves with the means of doing

SO."1

It is an essential element of this organization that there shall be a Common hostile common intent on the part of all the members. This intent must, of intent necessary. course, be a hostile one, as is indicated by the words of the statute qualifying the object of the expedition as one "to be carried on from thence [the United States] against the territory or dominions of any foreign prince or state." In the case of United States v. O'Sullivan,2 it was held that before the jury can convict under Sec. 5286 it must have been shown "that the design, the end, the aim, and the purpose of the expedition, or enterprise, was some military service, some attack, or invasion of another people or country, state, or colony, as a military force."

armed.

With regard to the second point, that the body of men thus organ- How far expeized must be to some extent armed, recent decisions are somewhat dition must be conflicting. It would seem that without arms and ammunition no expedition, however well organized and with whatever hostile purpose, could properly be said to be military in character; and as in all of the early cases the expeditions were in fact armed, the question whether it was necessary that they should be armed was not presented to the courts. But more recently, in the case of United States v. Wiborg,3 the court ventured the assertion that "whether such provision [of the means of carrying on war], as by arming, etc., is necessary need not be decided in this case. I will say, however, to counsel that were that question required to be decided I should hold that it is not necessary." As against this dictum, there is the case of United States v. Hart,* in which the court held that one of the essential elements of a military body was "arms; such arms as are appropriate to the enterprise; such as will enable the body to do the military work contemplated." But in a case arising out of an indictment of the same person the following year, the court held that "it is not necessary that the arms shall be carried upon their persons here, or on their way; it is sufficient that arms have been provided for their use when occasion requires."

1See also United States v. Hughes, 75 Fed. Rep., 267.

227 Fed. Cases, No. 15,975.

873 Fed. Rep., 159.

474 Fed. Rep., 724.

578 Fed. Rep., 868.

What number of men necessary.

What organization necessary.

It will be seen that in determining what conditions are required to constitute a body of men a "military expedition," the courts have been embarrassed by the necessity of not infringing upon the acknowledged right of citizens to leave the United States to enlist in foreign armies and to transport arms and ammunition in the ordinary course of commerce. The line has been in many cases difficult to draw. In the case of United States v. Hart,1 the court said: "As this is lawful for one man [to leave the United States to enlist abroad], so it is lawful for ten men or for twenty or a hundred men. It is a necessary incident to this lawful right, that men may go abroad for this purpose in any way they see fit; either as passengers by a regular line steamer, or by chartering a steamer, or in any other manner they choose, either separately or associated; so long as they do not go as a military expedition, nor set on foot a military enterprise, which Sec. 5286 prohibits." And with respect to the transportation of arms and ammunition, the court held: "If, however, the expedition or enterprise was designed only to transport munitions of war as merchandise to Cuba, though for the use of the insurgent army, and at the same time to transport a body of men as individuals to Cuba, who wished to enlist there, and that was all, then it was not a military expedition or enterprise under this statute; it would not be so unless the men had first combined or agreed to act together as a military force, or contemplated the exercise of military force in order to reach the insurgent army."

12

The statute provides that the military expedition must be one "to be carried on from thence [the United States] against the territory or dominions of a foreign prince, state, .. ." These words would seem to require that the organization of the expedition must be more or less complete before the expedition leaves the United States; but here again the courts have not applied the rule of strict interpretation. In the case of United States v. Hart, the court held: "I only 174 Fed. Rep., 724.

2In an opinion rendered in 1895 with reference to shipments of arms into Cuba, Attorney General Harmon pointed out how an apparently commercial transaction might take on a hostile character. "If, however," he said, "the persons supplying or carrying arms and munitions from a place in the United States are in any wise parties to a design that force shall be employed against the Spanish authorities, or that, either in the United States or elsewhere, before final delivery of such arms and munitions, men with hostile purposes toward the Spanish Government shall also be taken on board and transported in furtherance of such purposes, the enterprise is not commercial, but military, and is in violation of international law and of our own statutes." 21 Op. Atty. Gen., 267.

374 Fed. Rep., 724.

repeat that while it is not necessary in my judgment that all the elements of a military expedition-soldiers, officers, a military organization, arms and equipments-should exist or be supplied at the time when the vessel sails, it is necessary that there should be a combination for those purposes, that these should have been within the understanding and intent of the parties and that some of these things should be consummated here. The most essential thing would seem to be a combination for some kind of military organization, some enrolment, some enlistment, or some agreement which bound the men to act together as a body for military service." In a later case, United States v. Murphy,1 the court went so far as to say: "Nor is it necessary that all of the persons composing the military enterprise should be brought in personal contact with each other within the limits of the United States; nor that they should all leave those limits at the same point. It is sufficient that by previous arrangement or agreement, whether by conversation, correspondence or otherwise, they become combined and organized for the purposes mentioned, and that by concerted action, though proceeding from different portions of this country, they meet at a designated point either on the high seas or within the limits of the United States." The case of Wiborg Wiborg v. v. United States may be cited as a typical example showing the evidence which a court would consider conclusive of the existence of a military expedition. The plaintiff in error was indicted for having been engaged, as captain of a steamer, in a military expedition against the island of Cuba, then belonging to Spain. The court summed up the facts of the case as follows: "This body of men went on board a tug loaded with arms; were taken by it thirty or forty miles and out to sea; met a steamer outside the three-mile limit by prior arrangement; boarded her with the arms, opened the boxes and distributed the arms among themselves; drilled to some extent; were apparently officered; and then, as preconcerted, disembarked to effect an armed landing on the coast of Cuba. The men and the arms and ammunition came together; the arms and ammunition were under the control of the men; the elements of the expedition were not only 'capable of proximate combination into an organized whole,' but were combined or in process of combination; there was concert of action; they had their own pilot to the common destination; they landed themselves and their munitions of war together by their own efforts."

184 Fed. Rep., 609.

2163 U. S., 632.

United States.

Secs. 7-8 of Act of April 20, 1818.

Grounds of jurisdiction.

Enforcement of Foregoing Principles.

Sec. 5287. [The district courts shall take cognizance of all complaints, by whomsoever instituted, in cases of captures made within the waters of the United States, or within a marine league of the coasts or shores thereof.] In every case in which a vessel is fitted out and armed, or attempted to be fitted out and armed, or in which the force of any vessel of war, cruiser or other armed vessel is increased or augmented, or in which any military expedition or enterprise is begun or set on foot, contrary to the provisions and prohibitions of this Title; and in every case of the capture of a vessel within the jurisdiction or protection of the United States as before defined; and in every case in which any process issuing out of any court of the United States is disobeyed or resisted by any person having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of any colony, district, or people, or of any subjects or citizens of any foreign prince or state, or of any colony, district, or people, it shall be lawful for the President, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, for the purpose of taking possession of and detaining any such vessel, with her prizes, if any, in order to the execution of the prohibitions and penalties of this Title, and to the restoring of such prizes in the cases in which restoration shall be adjudged; and also for the purpose of preventing the carrying on of any such expedition or enterprise from the territories or jurisdiction of the United States against the territories or dominions of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace.

The first sentence of this section figured as Sec. 6 of the original Act of 1794 and as Sec. 7 of the Act of 1818. It refers merely to a question of jurisdiction, and its place in the neutrality code may be explained as the result of the adoption by Congress of the recommendation made by Washington in his annual address on December 3, 1793, in which he said that, owing to disputes as to the power of the courts to effect the reparation of certain captures, "it would seem proper to regulate their jurisdiction in these points." The captures referred to are not the prizes which might be taken by American ships in the event of a war, but are the prizes taken by one belligerent from the other where the title is not valid because of the illegality of the capture within the territorial waters of the United States. In the case of the Alerta,1 decided in 1815, the court clearly explained the character of the jurisdiction assumed by the United 19 Cranch, 359.

States over prizes brought into its ports by foreign vessels of war. "The general rule is undeniable, that the trial of captures made on the high seas, jure belli, by a duly commissioned vessel of war, whether from an enemy or a neutral, belongs exclusively to the courts of that nation to which the captor belongs. To this rule there are exceptions which are as firmly established as the rule itself. If the capture be made within the territorial limits of a neutral country into which the prize is brought, or by a privateer which had been illegally equipped in such neutral country, the prize courts of such neutral country not only possess the power, but it is their duty to restore the property so illegally captured to the owner. This is necessary to the vindication of their own neutrality."

It will be observed that the justification offered by the court for the restoration of prizes captured by a belligerent within the territorial waters of the United States was likewise extended to cover the case of prizes captured, not within the jurisdiction of the United States, but by privateers which had been illegally fitted out in the ports of the United States. In fact, immediately upon the passage of the Act of 1794 and without any special grant of jurisdiction from Congress, the District Courts assumed jurisdiction over prizes captured on the high seas by privateers which had either been fitted out and armed in the United States in violation of Sec. 5283, or which had increased their force within the United States in violation of Sec. 5285.1 Even before the passage of the Act of 1794, in the case of Glass v. The Betsey, it was argued by counsel for the defendants that the District Courts had no jurisdiction in cases of captures made on the high seas by foreign privateers; that if the property of an American citizen was involved, "his application ought to be made to his government; the injury he complains of, being of national not of judicial, inquiry.” But the court held that jurisdiction in such cases properly belonged to the district courts which were competent to inquire and to decide whether restitution could be made "consistently with the laws of nations and the treaties and laws of the United States." Jurisdiction in such cases is entirely distinct from an inquiry into the validity of the capture, jure belli, on the high seas of a neutral ship by a duly commissioned vessel, whether privateer or public vessel of war, in the service of a foreign state. In the case of the Invincible, the court

3

1See The Nancy, 4 Fed. Cases, No. 1,898; The Betty Carthcart, 17 Fed. Cases, No. 9,742; Talbot v. Jansen, 3 Dall., 133.

23 Dall., 6.

31 Wheat., 238.

Extension of jurisdiction over other prizes.