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The enlistment at New York of seamen or others for service on war vessels of Mexico (she being at war with Texas), such persons not being Mexicans transiently within the United States, is a breach of the act of 1818.
Nelson, At. Gen., 1844, 4 Op. 336.
The undertaking of a belligerent to enlist troops of land or sea in a neutral state without the previous consent of the latter is a hostile attack on its national sovereignty. The act of Congress prohibiting foreign enlistments is a matter of domestic or municipal right as to which foreign governments have no right to inquire, the international offense being independent of the question of the existence of a prohibitory act of Congress.
Cushing, At. Gen., 1855, 7 Op. 367.
In this opinion it was advised that a foreign minister who engages in the enlistment of troops in the United States for his government is subject to be summarily expelled, or, after demand for his recall, dismissed by the President. See supra, § 640.
If agents of the British Government, being instructed to enlist military recruits, succeed in evading the municipal law and so escape punishment as malefactors, "such successful evasion serves to increase the intensity of the international wrong done the United States."
Cushing, At. Gen., 1855, 8 Op. 468; id. 476.
For the indictment in United States v. Hertz, for illegal recruiting, see
"While the laws of the Union are thus peremptory in their prohibition of the equipment or armament of belligerent cruisers in our ports, they provide not less absolutely that no person shall, within the territory or jurisdiction of the United States, enlist or enter himself, or hire or retain 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 state, either as a soldier or as a marine or seaman on board of any vessel of war, letter of marque, or privateer. And these enactments are also in strict conformity with the law of nations, which declares that no state has the right to raise troops for land or sea service in another state without its consent, and that, whether forbidden by the municipal law or not, the very attempt to do it without such consent is an attack on the national sovereignty.
"Such being the public rights and the municipal law of the United States, no solicitude on the subject was entertained by this Government when, a year since, the British Parliament passed an act to provide for the enlistment of foreigners in the military service of
Great Britain. Nothing on the face of the act or in its public history indicated that the British Government proposed to attempt recruitment in the United States, nor did it ever give intimation of such intention to this Government. It was matter of surprise, therefore, to find subsequently that the engagement of persons within the United States to proceed to Halifax, in the British province of Nova Scotia, and there enlist in the service of Great Britain, was going on extensively, with little or no disguise. Ordinary legal steps were immediately taken to arrest and punish parties concerned, and so put an end to acts infringing the municipal law and derogatory to our sovereignty. Meanwhile suitable representations on the subject were addressed to the British Government.
"Thereupon it became known, by the admission of the British Government itself, that the attempt to draw recruits from this country originated with it, or at least had its approval and sanction; but it also appeared that the public agents engaged in it had stringent instructions' not to violate the municipal law of the United States.
"It is difficult to understand how it should have been supposed that troops could be raised here by Great Britain without violation of the municipal law. The unmistakable object of the law was to prevent every such act which if performed must be either in violation of the law or in studied evasion of it; and in either alternative, the act done would be alike injurious to the sovereignty of the United States.
"In the meantime the matter acquired additional importance by the recruitments in the United States not being discontinued, and the disclosure of the fact that they were prosecuted upon a systematic plan devised by official authority; that recruiting rendezvous had been opened in our principal cities and depots for the reception of recruits established on our frontier, and the whole business conducted under the supervision and by the regular cooperation of British officers, civil and military, some in the North American provinces and some in the United States. The complicity of those officers in an undertaking which could only be accomplished by defying our laws, throwing suspicion over our attitude of neutrality, and disregarding our territorial rights is conclusively proved by the evidence elicited on the trial of such of their agents as have been apprehended and convicted. Some of the officers thus implicated are of high official position, and many of them beyond our jurisdiction, so that legal proceedings could not reach the source of the mischief.
"These considerations, and the fact that the cause of complaint was not a mere casual occurrence, but a deliberate design, entered upon with full knowledge of our laws and national policy and conducted by responsible public functionaries, impelled me to present the case to the British Government, in order to secure not only a
cessation of the wrong, but its reparation. The subject is still under discussion, the result of which will be communicated to you in due time."
President Pierce, annual message, Dec. 3, 1855, Richardson's Message I.
As to the subsequent dismissal of Mr. Crampton, the British minister,
It is not a crime, under the neutrality law, to leave this country with intent to enlist in foreign military service; nor to transport persons out of the country with their own consent who have an intention of so enlisting. To constitute a crime under the statute, such person must be hired or retained to go abroad with the intent to be so enlisted.
United States v. Louis Kazinski, 2 Sprague, 7.
I lave to acknowledge the receipt of your No. 145 of the 7th instant, in which you report your action in relation to a public announcement in a newspaper of Ciudad Bolivar that the Spanish viceconsul in that city had, by the authority of the Spanish legation at Caracas, opened books for the enrollment of volunteers and the reception of subscriptions' in aid of Spain in her war with the United States. You state that both the President and the minister of foreign affairs of Venezuela agreed that the Spanish legation had gone too far, and that a stop should immediately be put to its efforts to raise men and money on Venezuelan soil with which to oppose the United States, and it appears that as a result of your representations the ministry of foreign affairs issued on the 1st of June a decree in which attention is called to various provisions of the penal code of Venezuela by which it is forbidden to anyone, without authority of the national government, to make levies or to arm and equip Venezuelans or foreigners on Venezuelan soil destined for the service of another nation, or to arrogate to himself illegal functions, and, without authority, to open an office for making subscriptions or enlistments.'
“Upon your report of the matter by cable, with the inquiry whether you should demand the dismissal of the Spanish minister at Caracas, the Department, in its telegraphic reply, instructed you to lay such evidences as you possessed of the minister's offenses before the Venezuelan Government, with an expression of confidence that it would take appropriate measures for the vindication of its sovereignty. The
Department deemed it proper, after the proofs should be presented to the minister of foreign affairs, to afford the Venezuelan Government an opportunity to investigate the matter, and of its own motion to take such further action as the facts should require. It is assumed that the Venezuelan Government, especially in view of what you say of its friendly disposition toward the United States, will not be disinclined to signify in a substantial way its displeasure at what seems to have been a flagrant attempt to disregard its laws and its neutrality."
Mr. Day, Sec. of State, to Mr. Loomis, min. to Venezuela, June 20, 1898,
In a report of the chief of the Bureau of Navigation of the Navy Department, communicated by the Acting Secretary of the Navy to the Secretary of State, June 1, 1898, it is said to be " the opinion of the Bureau that not even a citizen of the United States residing abroad can enlist in time of war without coming to the United States, unless neutrality laws are violated."
For. Rel. 1898, 1175.
3. FITTING OUT OR ARMING OF VESSELS.
(1) STATUTORY PROVISIONS.
"Every person who, within the limits of the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out, or arming, of any vessel, with intent that such vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, or who issues or delivers a commission within the territory or jurisdiction of the United States, for any vessel, to the intent that she may be so employed, shall be deemed guilty of a high misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years. And every such vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof, shall be forfeited; one-half to the use of the informer, and the other half to the use of the United States."
Sec. 5283, Revised Statutes.
"Every citizen of the United States who, without the limits thereof, fits out and arms, or attempts to fit out and arm, or pro
cures to be fitted out and armed, or knowingly aids or is concerned in furnishing, fitting out, or arming any private vessel of war, or privateer, with intent that such vessel shall be employed to cruise, or commit hostilities, upon the citizens of the United States, or their property, or who takes the 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."
Sec. 5284, Revised Statutes.
The half of the proceeds of a vessel, forfeited and sold for violation of the neutrality laws, belonging, under section 5233, Revised Statutes, to the informer, does not by lapse of time become the property of the United States, even if no one appears to claim it.
United States v. The Resolute, 40 Fed. Rep. 543.
(2) ORIGIN OF INHIBITION.
When M. Genet came to the United States as French minister in 1793, he brought with him a quantity of blank commissions, and after his arrival proceeded to fit out and commission privateers. Referring to this fact, and particularly to the capture and bringing into Philadelphia of a ship by one of these cruisers, Mr. Jefferson, on June 5, 1793, wrote to M. Genet that, as it was "the right of every nation to prohibit acts of sovereignty from being exercised by any other within its limits, and the duty of a neutral nation to prohibit such as would injure one of the warring powers," so " the granting military commissions, within the United States, by any other authority than their own," was "an infringement on their sovereignty, and particularly so when granted to their own citizens, to lead them to commit acts contrary to the duties they owe their own country." The departure of the vessels, so illegally equipped, from the ports of the United States was therefore requested.
This request was not complied with, and captures continued, together with the sale of prizes in the ports of the United States. Accordingly, on August 7, 1793, Mr. Jefferson informed M. Genet that the President considered the United States "as bound, pursuant to positive assurances, given in conformity to the laws of neutrality, to effectuate the restoration of, or to make compensation for, prizes