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understood what the expedition was, before leaving Philadelphia. The jury found Wiborg guilty. On a writ of error this verdict was sustained, the court saying: "It is true that the expedition started in the southern district of New York, and did not come into immediate contact with defendants at any point within the jurisdiction of the United States, as the Iorsa was a foreign vessel; but the Horsa's preparation for sailing and the taking aboard of the two boats at Philadelphia constituted a preparation of means for the expedition or enterprise, and if defendants knew of the enterprise when they participated in such preparation, then they committed the statutory crime upon American soil, and in the eastern district of Pennsylvania, where they were indicted and tried."
Wiborg v. United States (1896), 163 U. S. 632, 655; 16 S. Ct. 1127, affirming United States v. Wiborg, 73 Fed. Rep. 159.
See, also, United States v. Hughes (1896), 75 Fed. Rep. 267; United States v. O'Brien, id. 900; United States v. Hart, 74 Fed. Rep. 724; 78 Fed. Rep. 868; Hart v. United States, 84 Fed. Rep. 799, 28 C. C. A. 612.
"The district judge charged the jury in this case that it was not a crime or offence against the United States under the neutrality laws of this country for individuals to leave the country with intent to enlist in foreign military service, nor was it an offence against the United States to transport persons out of this country and to land them in foreign countries when such persons had an intent to enlist in foreign armies; that it was not an offence against the laws of the United States to transport arms, ammunition and munitions of war from this country to any foreign country, whether they were to be used in war or not; and that it was not an offence against the laws of the United States to transport persons intending to enlist in foreign armies and munitions of war on the same trip. But he said that if the persons referred to had combined and organized in this country to go to Cuba and there make war on the government, and intended when they reached Cuba to join the insurgent army and thus enlist in its service, and the arms were taken along for their use, that would constitute a military expedition, and the transporting of such a body from this country for such a purpose would be an offence against the statute. The judge also charged the jury as follows:
"In passing on the first question, it is necessary to understand what constitutes a military expedition within the meaning of the statute. For the purposes of this case, it is sufficient to say that any combination of men organized here to go to Cuba to make war upon its government, provided with arms and ammunition, we being at peace with Cuba, constitutes a military expedition. It is not necessary that the men shall be drilled, put in uniform, or prepared 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 a foreign government, and to have provided themselves with the means of doing so. I say "provided themselves with the means of doing so,” because the evidence here shows that the men were so provided. Whether such provision, as by arming, and so forth, 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. "Nor is it important that they intended to make war as an independent body or in connection with others. Where men go without combination and organization to enlist as individuals in a foreign army, they do not constitute such military expedition, and the fact that the vessel carrying them might carry arms as merchandise would not be important.'
"It appears to us that these views of the district judge were correct as applied to the evidence before him. 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. It may be that they intended to separate when they reached the insurgent headquarters, but the evidence tended to show that until that time they intended to stand together and defend themselves if necessary. From that evidence the jury had a right to find that this was a military expedition or enterprise under the statute, and we think the court properly instructed them on the subject.”
Wiborg v. United States (1896), 163 U. S. 632, 653–654.
Harlan, J., in a dissenting opinion, expressed the view that "this was
some form, in the civil war there pending-a loose, unorganized body, of very small dimensions, and without any surroundings that would justify its being regarded as a military expedition or enterprise to be carried on from this country." The number of persons in the company was from thirty to forty.
The court in the course of its opinion, which was delivered by Chief Justice Fuller, cited Calvo, Dict. de Droit Int. verbo. Expédition Militaire; Lawrence's Prin. Int. Law (1895), 508; Hall, Rights and Duties of Neutrals, § 22; Boyd's Wheaton, § 439aa; United States v. O'Sullivan, 2 Whart. Crim. Law, § 2802; United States v. Ybanez, 53 Fed. Rep. 536; Judge Brawley, in United States v. Hughes, not then reported; United States r. Pena, 69 Fed. Rep. 983; United States v. Hart (Judge Brown's opinion), not then reported. The court said that the judges, in the last two cases, "considered the statute as exacting a high degree of organization." In referring to the elements of the expedition as being "capable of proximate combination into an organized whole," the court quoted from Hall, as above cited.
See United States v. Wiborg, 73 Fed. Rep. 159; United States v. Hughes, 75, id. 267; United States v. O'Brien, id. 900; United States v. Hart, 74 Fed. Rep. 724, 78 Fed. Rep. 868; Hart v. United States (1898), 84 Fed. Rep. 799, 28 C. C. A. 612.
Mates of a foreign vessel sailing from a United States port, who at the time of sailing did not know that the vessel was to carry an expedition in violation of the neutrality law, and did not learn thereof until they met beyond the three-mile limit another vessel containing men and arms, are not guilty of an offense under section
Wiborg v. United States (1896), 163 U. S. 632, 16 S. Ct. 1127.
Section 5286, Revised Statutes, does not prohibit the shipping of arms, ammunition, or military equipments to a foreign country, nor forbid one or more individuals, singly or in unarmed association, from leaving the United States to join in any military operations being carried on between other countries or different parties in the same country.
United States v. Pena (1895), 69 Fed. Rep. 983, United States v. O'Brien (1896), 75 Fed. Rep. 900.
Evidence that the vessel of which defendant was captain stopped outside Sandy Hook and took on arms and men, and that the men were drilled during the voyage and were secretly landed at night on the coast of Cuba, is sufficient to justify holding him for trial under section 5286, Revised Statutes.
United States v. Hughes (1895), 70 Fed. Rep. 972.
If the owner of a vessel provides and furnishes her, knowing that she is to be used for the transportation to a foreign country of an
organized body of men, intending to act together in a concerted military way, and with arms, he is guilty of a violation of the
United States v. O'Brien (1896), 75 Fed. Rep. 900.
One who provides the means for transporting a military expedition on any part of its journey, with knowledge of its ultimate destination and unlawful character, is punishable under section 5286, Revised Statutes.
Hart v. United States (1898), 84 Fed. Rep. 799, 28 C. C. A. 612; affirming 78 Fed. Rep. 868.
Providing the means for carrying a known military expedition to an island over which the United States has jurisdiction, as one stage of its journey, with knowledge of its final hostile destination, is an offense under the statute.
United States v. Hart (1897), 78 Fed. Rep. 868.
Section 5286, Revised Statutes, creates two offenses, (1) the setting on foot, within the United States, a military expedition, to be carried on against any power, etc., with whom the United States are at peace; (2) providing the means for such an expedition.
United States v. Hart (1897), 78 Fed. Rep. 868.
The transportation of goods for commercial purposes only and the carriage of persons separately, though their individual design may be to enlist in a foreign strife, are not prohibited by our law if the transportation is without any features of a military character. Indications of a military operation or of a military expedition are concert and unity of action, organization of men to act together, the presence of weapons, and some form of command or leadership.
United States v. Nuñez (1896), 82 Fed. Rep. 599.
A vessel may at the same time transport a military enterprise and a cargo of arms and munitions of war, and, while the transportation of the latter is lawful, that of the former is unlawful.
United States v. Murphy (1898), 84 Fed. Rep. 609.
A combination of a number of men in the United States, with a common intent to proceed in a body to a foreign country and engage in hostilities, either by themselves or in cooperation with others, against a power with which the United States is at peace, constitutes a military expedition, when they actually proceed from the United States, whether they are then provided with arms or intend to secure them in transit. It is not necessary that all the persons shall be
brought into personal contact with each other in the United States, or that they shall be drilled, uniformed, or prepared for efficient service. United States v. Murphy (1898), 84 Fed. Rep. 609.
By section 11 of the British Foreign Enlistment Act of 1870 it is provided that "if any person within the limits of Her Majesty's dominions and without the license of Her Majesty, prepares or fits out any naval or military expedition against the dominions of any friendly state," the person so offending shall be punished by fine or imprisonment, or both, and that "all ships and their equipments, and all arms and munitions of war, used in forming part of such expedition, shall be forfeited." In the case of Regina v. Sandoval, prosecuted under this section, the jury, in answer to interrogatories, found that Sandoval" when he purchased the goods and ammunition in this country [Great Britain] knew and intended that they should be used for the purpose they subsequently were," that is to say, in aid of an insurrection against the Government of Venezuela. Sandoval was convicted and the judgment on appeal was affirmed. Wills, J., said: "The offense is not confined to the fitting out, but it includes the preparation." Any act which "contributes in any material degree towards setting on foot an expedition fitted for warlike purposes is, in my judgment, the preparation for that expedition."
Memorandum inclosed in Mr. Hay, Sec. of State, to Mr. Choate, ambass to England, No. 362, April 24, 1900, MS. Inst. Great Britain, XXXIII. 393, 394, citing Wheeler's British and American Enlistment Acts. 76-92, and Snow's International Law (2d ed., by Stockton), 118–134
By 11 of the British Foreign Enlistment Act, 1870 (33 and 34 Vict. c. 90), it is provided that "if any person within the limits of her Majesty's dominions, and without the license of her Majesty, prepares or fits out any naval or military expedition to proceed against the dominions of any friendly state," then "every person engaged in such preparation or fitting out, or assisting therein, or employed in any capacity in such expedition," shall be guilty of an offence. Held, that, once the fact was established that there had been a preparation in the Queen's dominions, then "there may be an assistance in such preparation, or an employment of the kind mentioned in the section, outside the Queen's dominions, which will amount to an offence against the act, if the person rendering such assistance or accepting such employment be a subject of Her Majesty."
Reg. v. Jameson (1896), L. R. 2 Q. B. 425.