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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.

27The act of June 5, 1794, (1 stat. 381) was to last two years. It was renewed Mch. 2, 1797, (i 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 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 individually34 or in parties. 35

(c) “Setting on foot military expeditions within the territory of the United States is made a crime 36 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"


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.

11:40 and 41 Rev. Stat. sec. 5285; Penal Code of 1910, sec. 12.

“augmenting the force":41 of privateers. These were important in the days of the Napoleonic wars and the revolts of the Spanish and Portuguese colonies in South America in the early nineteenth century, and there were many prosecutions under them.“ With the revolution in naval architecture which the use of steel has brought, and the abolition of privateering by the Declaration of Paris of 1856, privateering by individuals is no longer important, although there were prosecutions under these provisions as late as 1891 for fitting out naval expeditions for use in Spanish American revolutions.43 This same change, however, has made the construction and sale of an armed vessel to a belligerent a violation of neutrality in itself.44 There have been efforts to apply these provisions to prevent the sale of armed vessels to belligerents. The courts have, however, held that an "intent" to use the vessel in hostilities must be shown, and “intent" implies more than a mere knowledge of the use to which it will be put.45 There is no provision making the bona fide sale of vessels to a belligerent a crime, although it was acts of this kind which the United States complained of in the Alabama Claims controversy. 46

42Criminal Prosecutions, see, U. S. vs. Guinet, 2 Dall. 321, (1795) Scott 695; U. S. vs. Smith, Fed. Cas. 16,342a, (1806); U. S. vs. Skinner, Fed. Cas. 16,309, (1818); U. S. vs. Quincy, 6 Pet. 445, (1832), Scott 706; U. S. vs. Trumbull, 48 Fed. Rep. 99, (1891), Scott 731. See also Nelson, Att. Gen., 4 op. 336, (1844). Forfeiture of vessels, see, Ketland vs. The Cassius, Fed. Cas. 7743; Gelston vs. Hoyt, 3 Wheat. 246, (1818); The Meteor, Fed. Cas. 9498, (1866), reversed, Fed. Cas. 15,760, Scott 711; The Mary N. Hogan, 18 Fed. Rep. 529; U. S. vs. 214 Boxes of Arms, 20 Fed. Rep. 50; The City of Mexico, 28 Fed. Rep. 148, (1886); The Carondolet, 37 Fed. Rep. 799, (1899); The Conserva, 38 Fed. Rep. 431; The Three Friends, 166 U. S. I, (1897); The Itata, 56 Fed. Rep. 505; The Laurada, 85 Fed. Rep. 760, (1898). Restoration of prizes captured by war vessels, see infra pp. 135-136.

43U. S. vs. Trumbull, 48 Fed. Rep. 99, (1891), Scott 731.

44 See Scott 720, note. A modern steel warship constitutes a “military expedition" in itself and it cannot be treated as other articles of contraband, the sale of which by private persons is permissible. See Snow, cases, p. 437-438; Editorial Comment, J. B. Scott, Am. Jour. Int. Law., 9;177, Jan. 1915.

45The Meteor, Fed. Cas. 15,760, reversing Fed. Cas. 9,498; The Santissima Trinidad, 7 Wheat. 283; LaConception, 6 Wheat, 235; The Bello Corrunes, 6 Wheat. 152; U. S. vs. Quincy, 6 Pet. 445; The Laurada, 98 Fed. Rep. 983; Moodie vs. The Alfred, 3 Dall. 307; 5 op. 92. The contrary view was offered by Attorney General Legare, (3 op. 747) and by Justice Betts, in the Meteor, (Fed. Cas. 9,498) although his decision was reversed on this point in the Circuit court, (Fed. Cas. 15,760). The correctness of the 46 On the Alabama award see, Moore, Int. Arb., 1;495-682, 4;40574178; 5;4639-4685; Moore's Digest, 7;1059-1076; Montague Bernard, Historical account of the neutrality of Great Britain during the American Civil War, London, 1870; Caleb Cushing, The Treaty of Washington, N. Y., 1873; Scott, 713-720.

(d) Certain acts which would constitute the ports or territory of the United States a "base of naval or military operations" have been made criminal offenses. The setting on foot of military expeditions, the fitting out and arming of privateers, or augmenting of their force have been mentioned. A joint resolution of April 22, 1898,47 authorizing the president to prohibit the exportation of coal or military material. This was amended on March 14, 191248 making such exportation a penal offense except under exemptions specified by the president. This applies only after the president has made a proclamation that "conditions of domestic violence" exist in an "American country" and

“ are being promoted by “munitions of war procured from the United States." An act of March 4, 191549 authorized the presiinterpretation which excludes the sale of armed vessels from the prohibition of the section is indicated by the fact that a bill to prevent the sale of armed vessels to belligerents was presented in the House of Representatives in 1817. It was lost in the Senate. (See Annals of Congress, 14th Cong., 2nd sess. p. 719). Also in 1866, when popular sympathy was aroused over the Fenian uprising and it was felt that the neutrality laws were too strict, a bill was presented in the House to prevent the recurrence of a decision similar to that of Justice Betts in the Meteor which had recently been given. The bill consisted of a revision of the neutrality acts including the provision that nothing be construed to prevent the sale of armed vessels to belligerents. This bill was also lost in the Senate. (See Cong. Globe, 39th cong. Ist sess. p. 4194-4197, and House Report, No. 100, 39th cong., ist sess). On this general subject see Fenwick, op. cit. pp. 37, 48-49, 108-109.

47 Act April 22, 1898, 30 stat. 739. This joint resolution was a war measure, intended to conserve to the United States the supplies of war material manufactured in the country and had no connection with obligations of neutrality but it was used as a basis for the neutrality proclamation of President Roosevelt, on Oct. 14, 1905, (34 stat. 3183), forbidding the exportation of arms to Dominican Republic where a revolution was going on. See Fenwick, op. cit. p. 56.

48 Act, March 14, 1912, 37 stat. 630. 49 Act, March 4, 1915, 38 stat. 1226.

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dent to direct customs officers to detain vessels which are suspected of carrying fuel, arms, men, or supplies to foreign warships hovering outside of the harbor, and persons engaged in thus using American territory as a base of naval operations are subject to criminal indictment. The provisions of this act were suggested by a circular of the Department of State of September 19, 1914,50 in which the detention of vessels engaged in such unneutral acts was authorized.

Fines ranging up to $10,000, imprisonment ranging up to ten years, and forfeiture of unneutrally used vessels and other property are provided for these various offenses.51

(3) Besides the criminal provisions, statutes have provided oth means for preventing infractions of neutrality. District courts are given jurisdiction of vessels fitted out in violation of neutral duties with authority to condemn them.52 The president is authorized to employ the military and naval forces of the country to enforce the provisions of the act after judicial process shall have been ineffective,53 and to require foreign vessels to depart from ports of the United States when such stay would be contrary to international law or treaty.54 United States minis

50Circular of the Department of State, Sept. 19, 1914, Supp. Am. Jour. Int. Law., 9;122, Jan. 1915.

51 Penalties: Accepting foreign commission, fined not over $2,000, imprisoned not over 3 years, (Penal Code of 1910, sec. 9); enlisting in foreign service, $1,000, 3 years, (P. C. sec. 10); setting on foot military expedition, $3,000, 3 years, (P. C. sec. 13); fitting out and arming vessel, $10,000, 3 years, or 10 years if to cruise against United States citizens, and forfeiture of vessel, (P. C. sec, 11,303) ; augmenting force of vessel, $1,000, I year, (P. C. sec. 12); exportation of arms to American country when prohibited by proclamation, $10,000, 2 years, (Act, March 14, 1912, 37 stat. 630); supplying belligerent vessels from United States ports, $10,000, 10 years, (Act, March 4, 1915).

52 Rev. Stat. sec. 5383, Penal Code of 1910, sec. 12.

53 Rev. Stat sec. 5287, Penal Code of 1910, sec. 14. Only military, not civil force may be used under this authority, see Gelston vs. Hoyt, 3 Wheat. 246; Nelson, Att. Gen., 4 op. 336, (1844). This view somewhat modified, 21 op. 273.

54 Rev. Stat. sec. 5288, Penal Code of 1910, sec. 15. Fenwick expresses. the opinion that this section, the same as the preceding, authorizes the president to act only when judicial action is impossible, through lack of jurisdiction due to the public character of the vessel or of sufficient evidence to permit of successful prosecution. It seems, however, as though in terms the president is left discretion as to the occasions upon which the authority may be properly exercised. See Fenwick, op. cit. p. 95.

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