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"The [neutrality] statute was undoubtedly designed in general to secure neutrality in wars between two other nations, or between contending parties recognized as belligerents, but its operation is not necessarily dependent on the existence of such state of belligerency. (13 Ops. Attys. Gen. 177, 178.) Section 5286 defines certain offences against the United States and denounces the punishment, therefor, but, although a penal statute, it must be reasonably construed, and not so as to defeat the obvious intention of the legislature."

Wiborg v. United States (1896), 163 U. S. 632, 647.

A vessel was libeled as forfeited to the United States, under § 5283 of the Revised Statutes, for being furnished, fitted out, and armed with intent that she should be employed in the service of what was variously described as "a certain people, to wit, certain people then engaged in armed resistance to the Government of the King of Spain, in the island of Cuba," and "a certain people, to wit, the insurgents in the island of Cuba, otherwise called the Cuban revolutionists," to cruise and commit hostilities against the subjects, citizens, and property of the King of Spain, in the island of Cuba. In one of the paragraphs of the libel it was set forth that the vessel was "furnished, fitted out and armed, being loaded with supplies and arms and munitions of war," and also that she was "furnished, fitted out and armed with one certain gun or guns, and with munitions of war thereof." The district judge held that the libel was insufficient, because it did not allege "that said vessel had been fitted out with intent that she be employed in the service of a foreign prince or state, or of any colony, district, or people recognized as such by the political power of the United States." Held—

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1. That the operation of the neutrality act was not necessarily dependent upon the existence of a state of war between contending parties recognized as belligerents. Wiborg v. United States, 153 U.S. 632.


2. That while the word "people" might mean the entire body of the inhabitants of a state, or the state or nation collectively in its political capacity, or the ruling power of the country, its meaning in that part of the section under consideration, taken in connection with the words "colony" and "district," covered any insurgent or insurrectionary body of people acting together, undertaking and conducting hostilities," although its belligerency had not been recognized. Gelston v. Hoyt, 3 Wheat. 246; The Estrella, 4 Wheat. 298; The Nueva Anna and Liebra, 6 Wheat. 193; The Gran Para, 7 Wheat. 471; United States v. Quincy, 6 Pet. 445; Nesbitt v. Lushington, 4 T. R. 783; Mauran v. Insurance Co., 6 Wall. 1; The Salvador, L. R., 3 P. C. 218.

3. That "any other conclusion rests on the unreasonable assumption that the act is to remain ineffectual unless the Government incurs the restraints and liabilities incident to an acknowledgment of belligerency. On the one hand, pecuniary demands, reprisals or even war, may be the consequence of failure in the performance of obli-. gations towards a friendly power, while on the other, the recognition of belligerency involves the right of blockade, visitation, search and seizure of contraband articles on the high seas and abandonment of claims for reparation on account of damages suffered by our citizens from the prevalence of warfare. No intention to circumscribe the means of avoiding the one by imposing as a condition the acceptance of the contingencies of the other can be imputed."

4. That the distinction between recognition of belligerency and recognition of a condition of political revolt, between recognition of the existence of war in a material sense and of war in the legal sense, was sharply illustrated in the pending case, since the political department of the Government, while it had not recognized the existence of a de facto political power engaged in hostility with Spain, had "recognized the existence of insurrectionary warfare" prevailing before, at, and since the forfeiture alleged, so that the courts were "judicially informed of the existence of an actual conflict of arms in resistance of the authority of a government" with which the United States was at peace, although "acknowledgment of the insurgents as belligerents by the political department” had not taken place. Proclamations of the President, June 12, 1895, and July 27, 1896; annual messages, Dec. 2, 1895, and Dec. 7, 1896.

The decree of the district court was reversed.

The Three Friends (1897), 166 U. S. 1.

See, as to the Three Friends, Mr. Olney, Sec. of State, to Mr. Dupuy de
Lome, Oct. 6, 1896, MS. Notes to Spain, XI. 228; Mr. Olney to At.
Gen., Dec. 28, 1896, 214 MS. Dom. Let. 640.

"It belongs to the political department to determine when belligerency shall be recognized, and its action must be accepted according to the terms and intention expressed."

Fuller, C. J., delivering the opinion of the court, The Three Friends (1897), 166 U. S. 1, 63.

"In Wiborg. United States, 163 U. S. 632, which was an indictment under section 5286, we referred to the eleven sections from 5281 to 5291, inclusive, which constitute Title LXVII of the Revised Statutes, and said: "The statute was undoubtedly designed in general to secure neutrality in wars between two other nations, or between contending parties recognized as belligerents, but its operation is not necessarily dependent on the existence of such state of bellig

erency,' and the consideration of the present case arising under section 5283 confirms us in the view thus expressed."

The Three Friends (1897), 166 U. S. 1, 51.

"Neutrality, strictly speaking, consists in abstinence from any participation in a public, private or civil war, and in impartiality of conduct toward both parties, but the maintenance unbroken of peaceful relations between two powers when the domestic peace of one of them is disturbed is not neutrality in the sense in which the word is used when the disturbance has acquired such head as to have demanded the recognition of belligerency. And, as mere matter of municipal administration, no nation can permit unauthorized acts of war within its territory in infraction of its sovereignty, while good faith towards friendly nations requires their prevention.


"Hence, as Mr. Attorney-General Hoar pointed out, 13 Opinions, 177, 178, though the principal object of the act was to secure the performance of the duty of the United States, under the law of nations, as a neutral nation in respect of foreign powers,' the act is nevertheless an act to punish certain offences against the United States by fines, imprisonment and forfeitures, and the act itself defines the precise nature of those offences.'”

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The Three Friends (1897), 166 U. S. 1, 52, Fuller, C. J., delivering the opinion of the court.


§ 1333.

Shortly after I had entered upon the discharge of the executive duties I was apprized that a war steamer belonging to the German Empire was being fitted out in the harbor of New York with the aid of some of our naval officers rendered under the permission of the late Secretary of the Navy. This permission was granted during an armistice between that Empire and the Kingdom of Denmark, which had been engaged in the Schleswig-Holstein war. Apprehensive that this act of intervention on our part might be viewed as a violation of our neutral obligations incurred by the treaty with Denmark and of the provisions of the act of Congress of the 20th of April, 1818, I directed that no further aid should be rendered by any agent or officer of the Navy; and I instructed the Secretary of State to apprize the minister of the German Empire accredited to this Government of my determination to execute the law of the United States and to maintain the faith of treaties with all nations. The correspondence which ensued between the Department of State and the minister of the German Empire is herewith laid before you. The execution of the law and the observance of the treaty were

deemed by me to be due to the honor of the country, as well as to the sacred obligations of the Constitution. I shall not fail to pursue the same course should a similar case arise with any other nation. Having avowed the opinion on taking the oath of office that in disputes between conflicting foreign governments it is our interest not less than our duty to remain strictly neutral, I shall not abandon it. You will perceive from the correspondence submitted to you in connection with this subject that the course adopted in this case has been properly regarded by the belligerent powers interested in the matter."

President Taylor, annual message, Dec. 4, 1849, Richardson's Messages,
V. 10.

See, as to this case, which was that of the war steamer United States,
see Mr. Clayton, Sec. of State, to Baron Roënne, April 10, April 29,
and May 5, 1849, MS. Notes to German States, VI. 201, 208, 214.
As to the bond required of the German Empire in this case, see Mr.
Clayton, Sec. of State, to Mr. Hilliard, M. C., Feb. 23, 1850, 37 MS.
Dom. Let. 450.

On August 22, 1898, ten days after the conclusion of the general armistice between the United States and Spain, Mr. Hay, American ambassador in London, was instructed to " ascertain whether Admiral Dewey may dock, clean, and paint bottoms of vessels under his command at Hongkong. These operations," it was added, "could not under present circumstances be considered as connected with actual hostilities, but are in the nature of repairs affecting the preservation of vessels."

August 23 Mr. Hay replied that the British Government had telegraphed to the governor of Hongkong to accede to Admiral Dewey's application.

For. Rel. 1898, 1002.

"I have the honor to inform you that on the 22nd ultimo I received the following telegram of that date from Mr. Harris, United States consul at Nagasaki: 'Ascertain if Japanese Government will allow dock-yard company here to dock ships of our fleet during armistice. Answer soon as possible.'

"From an interview had with the vice-minister for foreign affairs it is clear that the Japanese Government are strongly convinced that, the present being an armistice and not definite peace, the relation of neutral and belligerent remains unchanged; and that therefore they could not without a breach of neutrality allow the docking of United States war vessels in a Japanese port.

"Mr. Harris was accordingly on the 24th ultimo answered by wire in the negative. He has since informed me that his telegram to me was sent in view of a telegram to him from Admiral Dewey request

ing him to ascertain whether ships of the fleet could be docked at Nagasaki during the armistice, and desiring a speedy reply."

Mr. Buck, min. to Japan, to Mr. Day, Sec. of State, No. 190, Sept. 6, 1898,
MS. Desp. Japan.

September 21, 1898, after the conclusion of the general armistice between the United States and Spain, the Department of State instructed the embassy of the United States in London that it was desired to send the small light-draft gunboat Helena to China for river service, for which purpose she was expressly built, and that she would sail about October 1st, touching at Bermuda, Madeira, and Gibraltar. The embassy was instructed to ask permission for the vessel to visit Bermuda and Gibraltar and coal there, with the understanding that she "does not reinforce Asiatic Squadron for operations against Spain should hostilities be resumed."

The desired permission was granted by the British Government on the understanding expressed in the application.

For. Rel. 1898, 1005.

By the protocol between the United States and Spain, concluded at Washington, August 12, 1898, hostilities were immediately sus-pended, and it was provided that commissioners should meet at Paris to treat of peace. Subsequently the U. S. S. Marietta, on visiting the Dutch port of Curaçao, in the West Indies, was, after a stay of forty-four hours, requested to depart. The American minister at The Hague was instructed to bring the matter to the attention of the Dutch Government and to inquire whether it regarded its neutrality proclamation as being strictly applicable during the existing truce and when the treaty of peace seemed to be on the eve of consummation. It was stated that other neutral powers had treated the armistice between the United States and Spain as a practical end of the war, and had admitted public ships of the United States freely to enter their ports for docking, taking on supplies, and for other purposes.

Mr. Hay, Sec. of State, to Mr. Newel, min. to the Netherlands, No. 195,
Feb. 8, 1899, MS. Inst. Netherlands, XVI. 401.

See, also, Mr. Hay, Sec. of State, to Mr. White, chargé at London, Oct.
24, 1898, No. 917, MS. Inst. Great Britain, XXXIII. 14.



§ 1334.

On May 2, 1793, the United States received from Mr. Hammond, the British minister, a request for the restoration of the British ship Grange, which had been captured by the French frigate L'Embus

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