« iepriekšējāTurpināt »
(2) The greater part of these duties formerly stipulated for in treaties with single countries have now been incorporated in the Hague conventions and thus given more definite recognition as principles of international law. Those dealing with neutral duties are, however, by their terms binding only when all of the parties in the war are signatories.15 These conventions require a neutral state to prevent, by the use of force if necessary, the transportation of troops across its territory, or the use of neutral territory for erecting wireless stations or for recruiting.16 but it is stipulated that no obligation exists to prevent individuals crossing its frontiers for foreign service, or the exportation of arms by private persons. In reference to naval war, the neutral must use the "means at its disposal" to prevent the making of captures in territorial waters, the setting up of belligerent prize courts in its territory, or the use of its ports as a "base of naval operations."'18 The principle of the treaty of Washington, requiring the neutral state to prevent the fitting out or departure of armed vessels from its shores, is embodied practically verbatim.19 The neutral state is also required to prevent belligerent war vessels and prizes, enjoying the right of asylum in its ports, from exceeding the privileges accorded them by international law. Thus it must enforce the twenty-four hour stay and twenty-four hour interval rules and must prevent the carrying out of repairs by war vessels other than those "absolutely necessary to render them seaworthy," and the augmentation of their fighting force or armament. Fuel may only be given sufficient to reach the nearest home port and only once in three months in the same port to vessels of the same belligerent power.20 Failure to enforce these rules would constitute the neutral port a "base of naval operations."
As treaties are declared by the constitution to be part of the law of the land, it would seem that executive officers and courts are justified in assuming authority to carry out any of these provisions, even in the absence of express statutory authority. This view was upheld in the case of Ex parte Toscana.21 This case does not relate to a duty of prevention, but to the provision of 15 Hague Conventions, 1907, v, art. 20; xiii, art 28, Malloy, pp. 22902352.
16Ibid., v, arts. 2-5, 10; xiii, art. 5.
17Ibid., v, arts. 6-8, xiii, art. 7.
18 Hague Conventions, 1907, xiii, arts. 2, 4, 5, 25, 26. 19Ibid., xiii, art. 8.
20Ibid., xiii, arts. 13, 14, 16-21.
21Ex parte Toscana, 208 Fed. Rep. 938, (1913).
the Hague convention of 1907 requiring a neutral state to vindicate its sovereignty by interning belligerent troops crossing its frontier. It would seem that if executive officers have power to perform that duty under authority of the treaty alone, a similar exercise of authority in performing duties of prevention would be upheld. Undoubtedly criminal prosecutions could not be undertaken solely under authority of the conventions, 22 but it is believed that this case is authority for the view that executive action temporarily restraining property or persons, for the purpose of carrying out any of the duties of prevention required by treaty, would be upheld as valid and not in conflict with constitutional guarantees of "due process of law," etc.
There are, however, statutory means provided for the more effective enforcement of most of the duties of prevention defined in these treaties, as well as those required by the general principles of international law not specified in treaties or international agreements.
(1) In 1794 the first neutrality statute was enacted.23 It defined certain actions on the part of citizens of the United States in aid of one of the belligerents as subject to criminal punishment, and gave administrative authority for the enforcement of these provisions.
The enactment of this statute was the outgrowth of two events, (1) the neutrality proclamation of the president and (2) the unsuccessful attempt to obtain a criminal conviction for a breach of neutrality under treaties, these proclamations and the common law. Washington's neutrality proclamation of April 22, 1793,24 after reciting the state of war which existed and the intention of the United States to remain neutral, said, "I have
22On lack of a common law criminal jurisdiction in federal courts see U. S. vs. Worral, 2 Dall. 384, (1798), U. S. vs. Hudson, 7 Cranch 32, (1812). A federal criminal jurisdiction based on treaties and international law was upheld in In re Henfield, Fed. Cas. 6360 (1793) and U. S. vs. Ravara, 2 Dall. 297, Fed. Cas. 16,122, (1793).
23 Act June 5, 1794, I stat. 381.
24 Proclamation, April 22, 1793, II stat. 753; Am. St. Pap., For. Rel., 1;140; Compilation of the Messages and Papers of the Presidents, 17891897, J. D. Richardson, ed., 10 vol., Washington, 1896-1899, 1:157. See also Rules adopted by the cabinet as to the equipment of vessels in the ports of the United States by belligerent powers, Aug. 3, 1793, Richardson's Messages, 10:86.
given instructions to those officers to whom it belongs to cause prosecution to be instituted against all persons who shall, within the cognizance of the courts of the United States, violate the law of nations with respect to the powers at war or any of them." This proclamation was followed by a more vigorous one of March 24, 1793,25 which specified various offences against neutrality which would be regarded as criminal, and especially "required all courts, magistrates and other officers to exert the power in them severally vested to prevent and suppress such unlawful assemblages and proceedings and to bring to condign punishment those who may have been guilty thereof."
The contents of these proclamations indicate the belief that breaches of neutrality by individuals could be punished without specific statute, and this view was upheld by the court in the case of Gideon Henfield. Henfield, who was accused of serving on board a French vessel, was brought to trial in the summer of 1793 after Washington's first proclamation and before his second. The United States Circuit court of Pennsylvania, composed of Justices Wilson, Iredell, and Peters, charged the jury to find Henfield guilty of breaches of neutrality because he had violated the law of nations which was part of the common law, be
25 Proclamation, March 24, 1794, 11 stat. 753; Richardson's Messages, 1:157. Neutrality proclamations of similar character have been issued by the president in succeeding wars in which the United States has been neutral. Franco-Prussian War, (Aug. 22, Nov. 8, 1870, 16 stat. 1132; Richardson's Messages, 7; 86; 89): Russo-Japanese War, (Feb. 11, 1904, 33 stat. 2332) Turco-Italian War, (Oct. 24, 1911, 37 stat. 1719): Great War, (Aug. 4-27, 1914, Supp. Am. Jour. Int. Law, 9;1 Jan. 1915). On a number of occasions neutrality proclamations have been issued calling attention to a state of insurrection or insurgency, when belligerency has not been recognized, and to the provisions of the neutrality laws applicable in such circumstances. Revolt of Spanish colonies, (Nov. 27, 1806; Sept. 1, 1815, Richardson's Messages, 1;404, 561): Canadian Insurrection, (Jan. 5; Nov. 21, 1838; Sept. 25, 1841, 11 stat. 784-786; Richardson's Messages, 3:481-482, 4;72): Cuban Filibusters, (Aug. 11, 1849; April 25, 1851; May 31, 1855, II stat. 787; Richardson's Messages, 5;7,111,272): Mexican Filibusters, (Oct. 22, 1851; Jan. 18, 1854, Richardson's Messages, 5;112,271): Nicaraguan Filibusters, (Dec. 8, 1855; Oct. 30, 1858, II stat. 789,798; Richardson's Messages, 5;388,496): Fenian Invasion of Canada, (June 6, 1866; May 24, 1870, 14 stat. 813; 16 stat. 1132; Richardson's Messages, 6;433: 7;85) Cuban Revolution, (Oct. 12, 1870; June 12, 1895; July 27, 1896, 16 stat. 1136; 29 stat. 870,881; Richardson's Messages, 7;91, 9;591, 694); Insurgency in Dominican Republic, (Oct. 14, 1905, 34 stat. 3183): Mexican Revolution, (Mch. 2, 12, 1912, 37 stat. 1732-1733).
cause he had violated certain treaties of peace and amity between the United States and some of the belligerent powers, and because he had endangered the safety and security of the United States. In spite of this the jury refused to find Henfield guilty largely on account of the popular republican sympathy for revolutionary France.
In order to prevent the recurrence of such an event the president urged upon congress the passage of a neutrality act specifying crimes against neutrality and fixing adequate penalties. The result was the act of June 5, 1794,26 already mentioned. Since that time neutrality acts of similar character have been constantly in force in the United States.27
For some time after the passage of this act there was doubt whether such offenses were not indictable at common law, in the federal courts, in the absence of a specific act. It was only gradually that the doctrine that federal courts enjoy no common law jurisdiction, developed. In the case of the United States vs. Ravara,28 which involved the sending of threatening letters to a diplomatic minister, the United States Circuit court of Pennsylvania maintained its jurisdiction in a criminal case at common law. In the cases of the United States vs. Worral29 in 1798 and United States vs. Hudson30 in 1812, the latter in the supreme court of the United States, the theory of a common law jurisdiction in federal courts was denied and since then this view has in the main been adhered to. It thus appears that in the present state of the law, in the absence of statute, offenses against neutrality would not be criminally punishable.
26 Act June 5, 1794, I stat. 381.
27 The act of June 5, 1794, (1 stat. 381) was to last two years. It was renewed Mch. 2, 1797, (1 stat. 497), amended, June 14, 1797, (1 stat. 520) and made permanent April 24, 1800, (2 stat. 54). This was amended by the temporary act of Mch. 3, 1817 (3 stat. 370) and the whole statute was revised in the permanent act of April 20, 1818, (3 stat. 447). A temporary amendment was passed March 10, 1838, (5 stat. 212). The act of 1818 was repeated in the Revised Statutes of 1878 (sec. 5281-5291) and with a few alterations in the Penal Code of 1910, (35 stat, 1088, sec. 9-18, 303). Acts of April 22, 1898, (30 stat. 739), March 14, 1912, (37 stat. 630) and March 4, 1915, should be regarded as amendments to the neutrality statutes. For excellent discussion of the neutrality laws, giving the authoritative interpretation by the courts, see C. G. Fenwick, The Neutrality Laws of the United States, Washington, 1913, passim.
28U. S. vs. Ravara, 2 Dall. 297, Fed. Cas. 16,122, (1793).
29U. S. vs. Worrall, 2 Dall. 384, (1798).
30U. S. vs. Hudson, 7 Cranch 32, (1812).
(2) The crimes defined by the neutrality statutes may be roughly classified as (a) accepting commissions, (b) enlisting in the service of a belligerent, (c) setting on foot military or naval expeditions, and (d) using the territory of the United States as a base of military or naval operations.
(a) "Accepting and exercising" a commission within the United States for service against a foreign state is a crime when performed by United States citizens.31 There has been only one prosecution under this provision, that of Isaac Williams in 1797.32
(b) Enlisting in the service of a foreign state or political body within the territory of the United States, or "hiring or retaining" others to do such an act or to leave the country with "intent" to do so is a crime for either citizens or aliens,33 but it has been held that the section does not forbid leaving the country with intent to enlist abroad, either individually or in parties.35 (c) "Setting on foot military expeditions" within the territory of the United States is made a crime36 and has been held to apply even though the expedition is directed against unrecognized insurgents.37 Hostile "intent" must, however, be proved.38 A mere departure of bodies of men, even with arms, may not constitute a "military expedition" in the meaning of the statute.39 Several sections of the neutrality statutes were designed particularly to prevent the "fitting out and arming"40 and
31 Rev. Stat. sec. 5281, Penal Code of 1910, 35 stat. 1088, sec. 9. 32U. S. vs. Isaac Williams, 2 Cranch, 82, note., Fed. Cas. 17,708, (1797). See also charge to Grand Jury, McLean, Fed. Cas. 18,265, (1838).
33 Rev. Stat., sec. 5282, Penal Code of 1910, sec. 10.
34U. S. vs. Hertz, Fed. Cas. 15,337, (1855), U. S. vs. Kazinski, Fed. Cas. 15,508, (1855).
35U. S. vs. Nunez, 82 Fed. Rep. 599; U. S. vs. O'Brien, 75 Fed. Rep. 900. On this offense see also Lee, Att. Gen., I op. 63; Cushing, Att. Gen., 7 op. 377; In re Henfield, Fed. Cas. 6360, (1793).
36 Rev. Stat., sec. 5286, Penal Code of 1910, sec. 13.
37 Wiborg vs. U. S., 163 U. S. 632; U. S. vs. O'Sullivan, Fed. Cas. 15,974. Contrary The Three Friends, 166 U. S. 1. See also letter of Secretary of State Bayard, July 31, 1855, For. Rel., 1855, p. 776, and 21 op. 267. 38U. S. vs. O'Sullivan, Fed. Cas. 15,975.
39U. S. vs. Hart, 74 Fed. Rep. 724. Other prosecutions under this section see, U. S. vs. Hart, 78 Fed. Rep. 868; U. S. vs. Lumsden, Fed. Cas. 15,641 ; U. S. vs. Murphy, 85 Fed. Rep. 609; U. S. vs. Ybanez, 53 Fed. Rep. 536; U. S. vs. Hughes, 75 Fed. Rep. 267. See also Charge to Grand Jury, McLean, Fed. Cas. 18,267, (1851).
40 Rev. Stat. sec. 5283, 5284, Penal Code of 1910, sec. 11,303.