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misdemeanor, and shall be fined not more than one thousand dollars and be imprisoned not more than one year."
Sec. 5285, Revised Statutes.
The opening in a neutral port of the port-holes of a belligerent cruiser, which had been previously closed, is “as much an augmentation of the force of the said vessel as if the port holes were now to be cut for the first time."
Decision of President Washington as given by Mr. Randolph, Sec. of State,
to M. Fauchet, French min., June 13, 1795, 8 MS. Dom. Let. 262.
A libel was filed by the owners of the Dutch ship Den Onzekeren and her cargo, praying for the restitution of their property, which had been captured by the French privateer Citizen of Marseilles and brought within the jurisdiction of the United States, on the ground that the privateer was fitted out and armed in violation of the laws of the United States. It appeared that in the autumn of 1793 the privateer, being in San Domingo, was fitted out with 28 guns, but, her destination being changed, some of her warlike equipments were displaced to make room for passengers. Some of the portholes were closed, and some of the iron guns were removed and wooden ones put in their places, so that, though she presented the same appearance of force, she had 12 iron and 16 wooden guns mounted, the rest of the iron guns being placed in her hold. She then came to the United States, entering the port of Philadelphia. Here she was repaired; some improvised state rooms, used on the voyage for passengers, were knocked down; the vessel was caulked; her old gun carriages were repaired, and some new ones made by her own carpenters in place of an equal number of old ones which were broken up; the eye-bolts, for fixing the gun tackle, were taken out and replaced, and she was furnished with a new mast. She sailed from Philadelphia in the daytime, and it was not till she had left the Delaware capes that she opened the portholes that had been closed, and mounted the guns in her hold. Counsel for the privateer contended that the facts disclosed no evidence of augmentation of force, by cannon or mariners; that the substitution of new for old gun carriages was a mere replacement, not an augmentation of force; and that no augmentation of warlike force had taken place in the United States.
The court took this view, refusing restitution. Geyer 1. Michel (1796),
3 Dall. 28.5. In a note to 3 Dall. 288, the reporter gives the judyment of Judge Bee, ordering the restitution of the ship Betty ('athcart, captured by the l'itizen of Marseilles. Judge Bee found as a fact that the cruiser, while mounting only 12 guns on her arrival at Philadelphia, had 20 or 28 mounted when she left the Delaware River, having, in spite of the refusal of the authorities at Philadelphia to permit the opening of ports, opened them and mounted her guns
within the territories of the United States. The circuit court, however, took new testimony in the case, with the result of finding that there was not an augmentation of force in the United States.
Under the nineteenth article of the treaty with France of 1778, a privateer has a right, on any urgent necessity, to make repairs in any ports of the United States. The mere replacement of guns, masts, and sails, which have been taken out to enable the vessel to be repaired, is not an augmentation of force in the sense of the statute.
Moodie ». The Ship Phoebe Anne (1796), 3 Dall. 319.
It was held that the repairing the waist, and cutting two ports in it for guns at a port of the United States, of a vessel fitted out and commissioned as a vessel of war when she entered, does not by itself constitute an augmenting of her force within the meaning of the act of 5th June, 1794.
The Brothers, Bee, 76.
An augmentation of the force of a foreign belligerent vessel in a port of the United States, we being neutral, by a substantial increase of her crew, is a breach of our neutrality.
Santissima Trinidad, 7 Wheat. 283.
Under the neutrality laws of the United States, a belligerent will not be permitted to augment the force of his armed cruisers when in a port of the United States.
Mr. Clay, Sec. of State, to Mr. Rebello, Brazilian chargé, Jan. 29, 1828,
MS. Notes to For. Legs. III. 418; same to same, April 8, 1828, IV. 5.
The repair of Mexican war steamers in the port of New York, together with the augmentation of their force by adding to the number of their guns, etc., is a violation of the act of 1818. But the repair of their bottoms, copper, etc., does not constitute an increase or augmentation of force within the meaning of the act.
Nelson, At. Gen., 1814, + Op. 336.
5. IIOSTILE EXPEDITIONS.
(1) CONSTITUENTS OF THE OFFENSE.
“Every person who, within the territory or jurisdiction of the United States, begins, or sets on foot, or provides 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."
Sec. 5280, Revised Statutes.
A contract between citizens of the United States and an inhabitant of Texas, to enable him to raise men and procure arms to carry on the war with Mexico, the independence of Texas not having been acknowledged by the United States, was held contrary to our national obligations to Mexico, and violative of our public policy. It can not, therefore, be specifically enforced by a court of the United States.
Kennett v. Chambers, 14 How. 38.
There is no municipal law in the United States to prevent the organization of combinations to aid and abet rebellion in another country, unless forcible acts be attempted.
Cushing, At. Gen., 1856, 8 Op. 216.
A mere preparation or plan of violation of neutrality, without overt acts, does not make the party amenable under section 6 of the neutrality act of 1818. (Rev. Stat., $ 5286.) If the means provided were procured to be used on the occurrence of a future contingent event, no liability is incurred under the statute. If, also, the intention is that the means provided shall only be used at a time and under circumstances when they could be used without a violation of law, no criminality attaches to the act.
United States 1. Lumsden, 1 Bond, 5.
Proof that a vessel transported from Aspinwall to the coast of Cuba men, arms, and munitions of war, destined to aid the Cuban insurgents, is insufficient by itself to call for proceedings against such vessel for violation of the neutrality law of the United States.
Akerman, At. Gen., 1871, 13 Op. 541.
The papers presented by the Secretary of State in the case of the Virginius do not establish any violation of the neutrality laws, either by the owners of the steamer or by the persons engaged thereon.
Bristow, At. Gen., 1872, 14 Op. 49.
The captain and mate of a United States vessel, if they, knowing the character of their cargo and its intended purpose, transport arms from a port within the United States to a foreign port, together with men and stores to be used in a military expedition against a people at peace with the United States, are guilty of a misdemeanor under Revised Statutes, section 5286.
United States t. Rand (1883), 17 Fed. Rep. 1-12.
Tropic, were both convicted. (Mr. John Davis, Act. Sec. of State,
The sending by a party of insurgents in Chile, organized and carrying on war against the government of that country, of an armed transport [the Itata] to the United States for the purpose of taking on board arms and ammunition purchased there and carrying them to Chile, is not the beginning, setting on foot, providing or preparing the means for a military expedition or enterprise to be carried on from the United States, within the meaning of sec. 5286, or of sec. 5285, Revised Statutes. “ The cases of the Mary A. Hogan, 18 Fed. Rep. 529; United States v. Two Hundred and Fourteen Boxes of Arms, etc., 20 Fed. Rep. 50; and United States v. Rand, 17 Fed. Rep. 142, cited by counsel for the United States in support of their position in respect to this point, do not at all support it. In each of those cases there was a military expedition, and it was organized within, started from, and was to be carried on from the United States."
United States 1. Trumbull (1891), 48 Fed. Rep. 99, 103.
secretly landing arms and munitions of war in Hawaii, For. Rel. 1895,
The military character of an expedition under section 5286, Revised Statutes, may be determined by the designation of officers or leaders, the organization of men in regiments or companies or otherwise, and the purchase of military stores; but no particular number of men is requisite, nor need the expedition actually set out, as the crime is completed by the mere organization, or other step in the inception thereof.
United States 1. Ybanez, 53 Fed. Rep. 536.
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. (Rev. Stat. $ 5286; United States 1'. Rand, 17 Fed. Rep. 142; United States v. The Mary N. Hogan, 18 Fed. Rep. 529; United States v. 214 Boxes of Arms, etc., 20 Fed. Rep. 50; The Conserva, 38 Fed. Rep. 431; United States v. Lumsden, 1 Bond, 105.)”
Harmon, At. Gen., Dec. 10, 1895, 21 Op. 267, 271.
The Horsa, a Danish steamer, sailing under the Danish flag and commanded by one Wiborg, a Danish subject, cleared from Philadelphia, November 9, 1895, for Port Antonio, Jamaica. She had on board but little cargo, among which were two lifeboats. Just before sailing Wiborg received a message instructing him, after passing out of the Delaware Bay, “ to proceed north near Barnegat and await further orders." He did as directed and anchored off Barnegat light, on the high seas, between three and four miles from shore. Here he was met by a steam lighter, which had sailed from Brooklyn with some cases of goods and two lifeboats, and afterwards, in lower New York Bay, had taken on board during the night between thirty and forty men, apparently Cubans or Spaniards, who, with the cases of goods and the lifeboats, were transferred to the Ilorsa. After boarding the Horsa the men broke open the cases and took therefrom rifles, swords, and machetes, and a cannon, and practiced with them. The steamer took the usual course for Jamaica, which follows the Cuban coast for several hours. When about six miles off that coast, at night, the men disembarked under Wiborg's supervision, taking with them all the arms and ammunition they could carry. For the purpose of getting ashore they used the two lifeboats that were shipped at Philadelphia, the two that were brought by the lighter, and two belonging to the steamer. The Horsa then completed her voyage to Port Antonio. On her return to Philadelphia Wiborg was indicted with certain other persons in the United States district court for the eastern district of Pennsylvania, under section 5286 of the Revised Statutes, on the charge that they, “at the district aforesaid and within the jurisdiction of this court, did, within the territory and jurisdiction of the United States, to wit, at the port of Philadelphia, Pennsylvania, within the district aforesaid, begin, set on foot and provide and prepare the means for a certain military expedition and enterprise to be carried on from thence against the territory and dominions of a foreign prince, to wit, against the island of Cuba,” etc. The district judge instructed the jury that the evidence would not justify a conviction “ of anything more than providing the means for or aiding such military expedition by furnishing transportation for their men, their arms, baggage,” etc.; and that in order to convict they must be satisfied that the defendants understood that they were to carry the expedition, and had provided for it, and