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It is a misdemeanor at common law to plot and combine to disturb the peace and tranquillity of the United States and to draw them into a war with a foreign nation.
Lee. At. Gen., 1797, 1 Op. 75.
Rulings, contra, are noted in Wharton's Crim. Law, § 253.
Appeal from the admiralty of the State of Massachusetts acquitting the brig Erstern and her cargo. It appeared that upon the conquest of Dominica by the French a capitulation was entered into by which commercial intercourse between Great Britain and that island was prohibited. Under these circumstances, one Mason, a British subject, sought to establish at Ostend a plan by which the commerce of Great Britain with Dominica was to be kept up. Accordingly certain imperial subjects at Ostend purchased at London the brig Erstern, on which Mason put a cargo of British merchandise, the property of British subjects. The brig cleared out from London for Ostend, and, on her arrival there, the imperial subjects in ques tion supplied her with false and colorable papers, by which they assumed the ownership of the cargo. The brig then sailed for Dominica with the cargo taken on board at London. It was held that this transaction was a fraudulent combination, and that the brig and cargo should be condemned, even though, by the ordinances of Congress, the cargo, if it were the property of the enemy, would not have been good prize if on board of a really neutral ship. The court seems to have proceeded on the idea of the fraudulent combination" of imperial subjects with British subjects to evade the prohibition of the capitulation. The court said that, if the brig had been employed in "fair commerce, such as was consistent with the rights of neutrality, her cargo, though the property of an enemy, could not be prize," unless indeed it had been contraband, which it was not. The court said that the subjects of a neutral nation could not consistently with neutrality" combine" with British subjects to wrest out of the hands of the United States and France, as allies, the advantages they had acquired from Great Britain by the rights of war, since this would be " taking a decided part with the enemy."
Darby v. Brig Erstern, Federal Court of Appeals (1782), 2 Dall. 34.
"The forms of unneutral service which have been hitherto most common are: 1. Carriage of enemy dispatches or correspondence. 2. Carriage of enemy persons. 3. Enemy transport service. In recent wars, auxiliary coal, repair, supply, cable ships and the like have become of great value. Pilotage by a neutral of an enemy vessel, the repetition of signals for the benefit of the enemy by any means, and many other acts, the number of which will continually increase' with the development of means of com
munication and transmission, must be provided against by something
George Grafton Wilson, Proceedings of the American Political Science
II. STANDARD OF OBLIGATION.
The measure of a neutral's obligations is to be found in the rules of international law, and it can not shelter itself by the allegation that its own legislation imposes a laxer standard on its subjects.
Papers relating to the Treaty of Washington, IV. 12; Moore, Int. Arbitrations, IV. 4101 et seq.
See, also, 103 North Am. Rev. (1866), 493.,
"The duties of neutrality by the law of nations can not be either expanded or contracted by national legislation. The United States, for instance, may, in excessive caution, require from its citizens duties more stringent than those imposed by the law of nations; but this, while it may make them penally liable in their own land, does not by itself make them or their Government extraterritorially liable for this action in disobeying such local legislation. On the other hand, a government can not diminish its liability for breach of neutrality by fixing a low statutory standard."
Mr. Bayard. Sec. of State, to Mr. Smithers, chargé in China, June 1, 1885, For. Rel. 1885, 172.
"Breaches of neutrality may be viewed by this Government in two aspects: First, in relation to our particular statutes; and, secondly, in respect of the general principles of international law. Our own statutes bind only our own Government and citizens. If they impose on us a larger duty than is imposed on us by international law, they do not correspondingly enlarge our duties to foreign nations, nor do they abridge our duties if they establish for our municipal regulation a standard less stringent than that established by international law." (Mr. Bayard, Sec. of State, to Mr. Hall, Feb. 6. 1886, For. Rel. 1886,
SS 1292, 1293.]
ACCEPTANCE OF COMMISSION; ENLISTMENTS.
The Hague Conference adopted the following resolution: The conference expresses the wish that the question of the rights and duties of neutrals should be considered at another conference. The American delegates voted for this resolution, but a few powers abstained from voting.
For. Rel. 1899, 513, 520.
III. PROHIBITED ACTS.
1. ACCEPTANCE OF COMMISSION.
· Every citizen of the United States who, within the territory or jurisdiction thereof, accepts and exercises a commission to serve a foreign prince, state, colony, district, or people, in war, by land or by sea, against any prince, state, 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 more than two thousand dollars and imprisoned not more than three years."
Sec. 5281, Revised Statutes.
One Isaac Williams was convicted in a United States court in Connecticut, in 1797, and fined and imprisoned for a violation of the neutrality laws in accepting in the United States a French commission and under the authority thereof committing acts of hostility against Great Britain.
Murray 1. Schooner Charming Betsy, 2 Cranch, 61, 82, note, summa
rizing the case as reported in the National Magazine, No. 3, p. 254.
$ 1293. “Every person who, within the territory or jurisdiction of the United States, enlists or enters himself, or hires or retains another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district or people, as a soldier, or as a marine or seaman, on board of any vessel of war, letter of marque, or privateer, shall be deemed guilty of high misdemeanor, and shall be fined not more than one thousand dollars, and imprisoned not more than three years.”
Sec. 5282, Revised Statutes.
“ The provisions of this Title [R. S., SS 5281-5291) shall not be construed to extend to any subject or citizen of any foreign prince,
state, colony, district, or people, who is transiently within the United States, and [enlist] [enlists] or enters himself on board of any vessel of war, letter of marque, or privateer, which at the time of its arrival within the United States was fitted and equipped as such, or hires or retains another subject or citizen of the same foreign prince, state, colony, district, or people, who is transiently within the United States, to enlist or enter himself to serve such foreign prince, state, colony, district, or people, on board such vessel of war, letter of marque, or privateer, if the United States shall then be at peace with such foreign prince, state, colony, district, or people. Nor shall they be construed to prevent the prosecution or punishment of treason, or of any piracy defined by the laws of the United States."
Sec. 5291, Revised Statutes.
It is a breach of the law of nations, punishable by indictment in the courts, to enlist in, or to aid in fitting out, foreign belligerent cruisers.
Henfield's Case, Wharton's State Trials, 49; Villato's Case, id. 185; Williams's Case, id. 652.
"Vessels of either of the parties not armed, or armed previous to their coming into the ports of the United States, which shall not have infringed any of the foregoing terms, may lawfully engage or enlist therein their own subjects or citizens, not being inhabitants of the United States.":
Hamilton's Treasury circular of Aug. 4, 1793, 1 Am. State Papers, For.
See Mr. Jefferson, Sec. of State, to Mr. Ternant, French min., May 15,
"Mr. Genet asserts his right of arming in our ports and of enlisting our citizens, and that we have no right to restrain him or punish them. Examining this question under the law of nations, founded on the general sense and usage of mankind, we have produced proofs, from the most enlightened and approved writers on the subject, that a neutral nation must, in all things relating to the war, observe an exact impartiality towards the parties, that favors to one to the prejudice of the other, would import a fraudulent neutrality, of which no nation would be the dupe; that no succor should be given to either, unless stipulated by treaty, in men, arms, or anything else directly serving for war; that the right of raising troops being one of the rights of sovereignty, and consequently appertaining exclusively to the nation itself, no foreign power or person can levy men within its territory without its consent; and he who does may be
rightfully and severely punished; that if the United States have a right to refuse the permission to arm vessels and raise men within their ports and territories, they are bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments. To these principles of the law of nations Mr. Genet answers, by calling them diplomatic subtilties' and 'aphorisms of Vattel and others.' But something more than this is necessary to disprove them; and till they are disproved, we hold it certain that the law of nations and the rules of neutrality forbid our permitting either party to arm in our ports."
Mr. Jefferson, Sec. of State, to Mr. Morris, min. to France, Aug. 16, 1793, 4 Jefferson's Works, 34; Am. State Papers, For. Rel. I. 167, 168.
Mariners may be said to be citizens of the world; and it is usual for them of all countries to serve on board of any merchant ship that will take them into pay, and this practice, from the manner of their livelihood, seems, for obvious reasons, founded on convenience and, in many instances, on necessity. 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 American sailors from hiring on board of them for the purpose of gaining a support in their customary way of occupation. A citizen of a neutral nation has a right to render his personal service as a sailor on board of any vessel whatever employed in mere commerce, though owned by either of the belligerent powers or the subjects or citizens of either, and nothing hostile can be imputed to such conduct.
Lee, At. Gen., 1796, 1 Op. 61.
To same general effect see 4 Op. 336; United States v. Skinner, 2 Wheel.
An American citizen may enter either the land or naval service of a foreign government without compromising the neutrality of his own.
The Santissima Trinidad, 1 Brock. 478.
Colombian vessels are entitled, under articles 6 and 31 of the treaty with that Republic of 1824, to make repairs in our ports when forced into them by stress of weather, but not to enlist recruits there, either from our citizens or from foreigners, except such as may be transiently within the United States.
Wirt, At. Gen., 1825, 2 Op. 4.