organized body of men, intending to act together in a concerted military way, and with arms, he is guilty of a violation of the statute. 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, constitutea 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. (2) DIELOMATIC DISCUSSIONS. § 1300. "The aiding either party, then, with vessels, arms, or men, being unlawful by the law of nations, and not rendered lawful by the treaty, it is made a question, whether our citizens, joining in these unlawful enterprises, may be punished. The United States, being in a state of peace with most of the belligerent powers by treaty, and with all of them by the laws of nature, murders and robberies committed by our citizens, within our territory, or on the high seas, on those with whom we are so at peace, are punishable, equally as if committed on our own inhabitants. No citizen has a right to go to war of his own authority; and for what he does without right, he ought to be punished. Indeed, nothing can be more obviously absurd, than to say that all the citizens may be at war, and yet the nation at peace. It has been pretended, indeed, that the engagement of a citizen in an enterprise of this nature was a divestment of the character of citizen, and a transfer of jurisdiction over him to another sovereign. Our citizens are certainly free to divest themselves of that character by emigration, and other acts manifesting their intention, and may then become the subjects of another power, and free to do whatever the subjects of that power may do. But the laws do not admit that the bare commission of a crime amounts of itself to a divestment of the character of citizen, and withdraws the criminal from their coercion." Mr. Jefferson, Sec. of State, to Mr. Morris, min. to France, Aug. 16, 1793, The Government of the United Sates will not at the request of a foreign government intervene to prevent the transit to the country of the latter of persons objectionable to it unless they form part of a hostile military expedition. Mr. Jefferson, Sec. of State, to the minister of France, Nov. 30, 1793, 4 See Field's Int. Code, § 971; 4 Hamilton's Writings, by Lodge, 48. In 1806 a military expedition was organized at New York by Francesco de Miranda, commonly known as General Miranda, a native of Caracas, who came to the United States in the latter part of 1805 for the purpose of getting up an expedition against the Spanish dominions in South America. He sailed from New York in February, 1806, on the ship Leander, and after procuring two schooners at Jacmel proceeded to the northern part of South America. On arriving off that coast the schooners were captured by the Spaniards. The Leander with Miranda escaped. On the schooners were thirty-six American citizens who had sailed on the Leander from New York, but who were transferred to the schooners at Jacmel. They were tried at Puerto Cabello on a charge of piracy, and on conviction were imprisoned at Carthagena. They alleged that they were entrapped into accompanying Miranda from New York by false statements, and that when they became cognizant of his designs they were forcibly prevented from leaving his service; and they sought and obtained the interposition of the United States for the purpose of securing their release. In July, 1806, Col. William S. Smith, surveyor of the port of New York, and Samuel G. Ogden were tried at New York under the act of 1794, for being concerned in setting on foot the expedition. The defense sought to prove that the expedi tion had been begun with the concurrence, if not at the suggestion, of the Administration, and summoned as witnesses the Secretary of State and other principal officials. These officers, in a communication to the court, set forth their inability to attend on account of public duties, but proposed that their testimony should be taken by commission. To this the defendants declined to assent and asked for compulsory process. The court decided, however, that their testimony would be immaterial, inasmuch as the previous knowledge or approbation by the President of illegal acts of a citizen could afford the latter no legal justification, as the President possessed no dispensing power. The charge of the judge was strongly against the defendants, but the jury returned a verdict of not guilty. Lloyd's Trials of William S. Smith and Samuel G. Ogden, in July, 1806: See, also, Adams's History of the United States, III. 189, 209, 238; Am. By Art. IX. of the treaty of Feb. 22, 1819, Spain renounced all claims "Miranda had the address to make certain persons at New York. among others Col. W. Smith, the surveyor, believe that, on his visit to Washington, he had enlisted the Executive into a secret sanction of his project. They fell into the snare; and in their testimony, when examined, rehearsed the representations of Miranda as to what passed between him and the Executive. Hence the outery against the latter as violating the law of nations against a friendly power. The truth is, that the Government proceeded with the most delicate attention to its duty; on one hand keeping in view all its legal obligations to Spain, and on the other, not making themselves, by going beyond them, a party against the people of South America. I do not believe that in any instance a more unexceptionable course was ever pursued by any Government.” Mr. Madison, Sec. of State (unofficial), to Mr. Monroe, Mar. 10, 1806, 2 Madison's Writings, 220. The war between Mexico and Texas gave rise to voluminous discussions as to the preservation of the neutrality of the United States, against the fitting out of hostile expeditions. As to the limits of neutrality in the war between Mexico and Texas, see In 1837 an insurrection occurred in Canada, under the leadership of Wm. Lyon McKenzie, a printer, and certain other persons. The movement was attended with commotions at various places in the United States along the Canadian frontier. December 7, 1838, Mr. Forsyth, who was then Secretary of State, addressed a letter to the district attorneys of the United States for Vermont, Michigan, and the northern district of New York, stating that it was "the fixed determination of the President faithfully to discharge, so far as his power extends, all the obligations of this Government, and that obligation especially which requires that we shall abstain, under every temptation, from intermeddling with the domestic disputes of other nations." On the same day Mr. Forsyth wrote to the governors of New York, Michigan, and Vermont, requesting their " prompt interference to arrest the parties concerned, if any preparations are made of a hostile nature against any foreign power in amity with the United States." Meanwhile the Canadian insurgents were defeated, and some of them sought refuge in the United States. Among the refugees were two of the leaders, McKenzie and Dr. Rolfe, who held public meetings in Buffalo and solicited recruits, of whom they succeeded in obtaining a considerable number, as well as a quantity of arms and ammunition. The collectors of customs on the Canadian frontier were instructed to lend their aid in enforcing the neutrality laws, and the marshal of the United States for the northern district of New York was directed to proceed to Buffalo for the purpose of suppressing the violations of neutrality in that quarter. On the 28th of December, 1837, he reported that on his arrival at Buffalo he found 200 or 300 men, mostly from the American side of the Niagara River, encamped on Navy Island, in Upper Canada, armed and under the command of Rensselaer Van Rensselaer, of Albany, who had assumed the title of general." The encampment had received accessions till it numH. Doc. 551-vol 7-59 |