"augmenting the force" 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.12 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. This same change, however, has made the construction and sale of an armed vessel to a belligerent a violation of neutrality in itself." 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 There is no provision making the bona fide sale of ves

45

41 Rev. Stat. sec. 5285; Penal Code of 1910, sec. 12.

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. 1, (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.

45 The 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

sels to a belligerent a crime, although it was acts of this kind which the United States complained of in the Alabama Claims controversy.48

(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, 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.

46On 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.

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.

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 other 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

50 Circular 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.

54Rev. 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.

ters in countries where the United States maintains consular courts may issue writs to prevent American citizens enlisting for service against any foreign country, and are authorized to use any military force of the United States available to carry this power into effect.55 Collectors of customs are required to detain vessels "manifestly built for military purposes" leaving ports of the United States when circumstances render an unneutral use probable,56 or, on order of the president, any vessel suspected of carrying arms or supplies to belligerent war vessels hovering outside of the port.57

Armed vessels owned in whole or in part by citizens of the United States, clearing out of ports of the United States, may be required to give bond that they will not be used by the owners themselves to commit hostilities.58 This provision was designed to prevent the use of American owned privateers in war. There would be no breach of the bond if vessels were sold to a belligerent and used by him to commit hostilities."

59

Federal courts are given "authority to hold to security of the peace and for good behavior in cases arising under the con1 stitution and laws of the United States.''60 This provision has been utilized to aid in the enforcement of neutrality obligations of prevention. In the case of United States vs. Quitman, arising in 1854, Quitman refused to answer certain questions of a Grand Jury which was investigating alleged violations of neutrality in connection with the Cuban revolution. For this refu

55 Act, June 12, 1860, 12 stat. 77, Rev. Stat. 4090. Consular courts are given jurisdiction over United States citizens promoting "insurrection or rebellion against the government" of the country where the court is located, with power to decree the death penalty provided the United States minister approves. Rev. Stat. sec. 4102. Supra pp. 39, 74.

56 Rev. Stat. 5290, Penal Code of 1910, sec. 17. This provision was suggested by Hamilton's "Instructions to the collectors of Customs of the United States" of Aug. 4, 1793. Am. St. Papers For. Rel., I:40. The customs collector is liable for detention of vessels without probable cause, see Hendricks vs. Gonzales, 67 Fed. Rep. 351.

57 Act March 4, 1915, 38 stat. 1226.

58 Rev. Stat. sec. 5289, Penal Code of 1910, sec. 16.

59 Because of the modern practice of converting merchantmen, although privateering is technically abolished, the provision is not obsolete. It seems probable, however, that it would be wise to extend its provisions to require bonding of vessels against sale to a belligerent, as this is now prohibited by international law. See Fenwick, op. cit. pp. 96, 154.

60 Rev. Stat. sec. 727, Judicial Code, 1911, 36 stat. 1087, sec. 270. 61U. S. vs. Quitman, Fed. Cas. 16,111, (1854).

sal the court held that under this statute bonds should be required of him to observe the neutrality laws.

62

EXECUTIVE ACTION

In addition to the authority given to administrative, judicial and executive officers by statute, much authority exists inherently in such officers to enforce neutrality obligations. The opinion has been expressed that the president as chief executive may perform acts necessary to enforce treaties in the absence of statutory authority. Such matters as preventing abuse of the privilege of asylum by belligerent warships, the passage of troops on neutral territory, and the unneutral use of radio-telegraph stations are prohibited by the Hague conventions as well as customary international law and may be enforced by executive action. Executive orders have provided for the supervision and censorship of radio-telegraph stations, and the detention of vessels suspected of carrying supplies to belligerent warships, on this basis. The shipping of submarines for sale to a belligerent power has also been prevented by executive action.65 The executive disapproval of loans to belligerents, although not required by international law, is another illustration of inherent executive authority in these matters.66

63

64

Courts have held that jurisdiction of vessels fitted out in violation of neutrality, or prizes taken by them, is inherent in the admiralty and prize jurisdiction, and may be exercised in the absence of statute.67 A large range of discretionary power to prevent unneutral use of territory or unneutral acts by American citizens undoubtedly exists in revenue officers, marshals and other civil officers of the United States.

62Ex Parte Toscano, 208 Fed. Rep. 938, (1913); See also In re Debs, 158 U. S. 564, (1895), on inherent power of executive and judicial officers to carry out the obligations and functions of government.

63 Executive Order, Aug. 5, 1914, Supp. Am. Jour. Int. Law, 9;115, Jan., 1915.

64 Circular of Dept. of Stat., Sept. 19, 1914, Supp. Am. Jour. Int. Law., 9;122, Jan., 1915.

65 Letter by Secretary of State Bryan, Dec. 7, 1914, Am. Jour. Int. Law, 9;177, (Jan., 1915). Also Editorial Comment, J. B. Scott, Ibid., 9;177. See also circular of Dept. of State with reference to the status of armed merchant vessels, 1914, permitting detention of suspected vessels by port authorities. Supp. Am. Jour. Int. Law, 9;121, (Jan., 1915).

66 See Editorial Comment, Am. Jour. Int. Law, 8;856 (1914).

67 Glass vs. The Sloop Betsey, 3 Dall. 6, (1794); Talbot vs. Jansen, 3 Dall. 133, (1796); The Estrella, 11 Wheat, 298, (1819).