Enlisting in foreign service

Arming vessels against friendly powers

out of this country with their own consent, they having an intention to so enlist. But if such persons were hired or retained to go abroad with the intent to be so enlisted, it would be otherwise. The word "soldier" must be understood in its ordinary sense as one enlisted to serve on land in a land army. An indictment which charges several persons jointly in the same count with enlisting contrary to this section is bad. United States v. Kazinski, 2 Sprague, 7, 26 Fed. Cas. 682.

SECTION 11. Whoever, within the territory or jurisdiction of the United States, fits outs and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out, or arming of any vessel, with intent that such vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, or whoever issues or delivers a commission within the territory or jurisdiction of the United States for any vessel, to the intent that she may be so employed, shall be fined not more than ten thousand dollars and imprisoned not more than three years. And every such vessel, her tackle, apparel and furniture, together with all materials, arms, ammunition, and stores which may have been procured for the building and equipment thereof, shall be forfeited; one-half to the use of the informer and the other half to the use of the United States.

This section is identical with U. S. Rev. Sts. § 5283, except that in the first line the words "territory or jurisdiction" are substituted for "limits." The phrase “any foreign prince or state" does not include a pretended foreign state not yet recognized by our government, or that to which the new state belongs. Gelston v. Hoyt, 3 Wheat. 246, 4 L. ed. 381. To come under this section, the expedition may be organized and dispatched from our ports in separate parts. United States v. The Mary N. Hogan, 18 F. R. 529. See Id. 88; 17 Id. 813; United States v. 200 Boxes, 20 Id. 50; The Alfred, 3 Dall. 307, 1 L. ed. 614.

Where a vessel built, equipped, and owned in the United Arming vessels

States captures the property of subjects of a nation in peace against

with the United States, such capture is illegal; and the friendly property, if brought within our territorial limits, will be powers restored to the original owners. La Conception, 6 Wheat.

235, 5 L. ed. 249; The Gran Para, 7 Id. 471, 5 L. ed. 501; The Santa Maria, Id. 490, 5 L. ed. 505; The Arrogante Barcelones, Id. 496, 5 L. ed. 507. This section prohibits only hostile voyages, not commercial ventures, such as the carrying of arms for a belligerent's use to a port in its possession. The Santissima Trinidad, 7 Wheat. 283, 340, 5 L. ed. 454; 1 Kent Com. 142; The City of Mexico, 24 F. R. 33, 25 Id. 924; United States v. 214 Boxes of Arms, 20 Id. 50. Nor does it apply to gunboats building in our ports for Spain, to be employed against Cuba. 13 A. G. Op. 177. This section does not prohibit the landing of a cargo contraband of war on the shores of one belligerent at a point not blockaded. The Florida, 4 Ben. 452, 9 Fed. Cas. 321. Nor does a vessel, by merely engaging in bona fide contraband trade, violate the statute or our neutral obligations, even if the trade be in armed vessels. The Bermuda, 3 Wall. 551, 18 L. ed. 200; The Carondelet, 37 F. R. 799. To constitute an offense, the vessel must be fitted out and armed with the specified intent. The statute does not prohibit the sale of unarmed vessels. United States v. Skinner, 1 Brun. Coll. Cases, 446, 2 Wheeler's Crim. Cas. 232, 27 Fed. Cas. 1123. This section includes all cases of vessels armed within American ports by one of the belligerent powers, to act as cruisers against another belligerent power with which the United States are at peace. Converting a merchant ship into a vessel of war must be deemed an original outfit. United States v. Guinet, 2 Dall. 321, 1 L. ed. 398; 5 A. G. Op. 92, 3 Id. 738, 741. The intention with respect to the employment of the vessel must be formed before she leaves the country, and this

Arming vessels

against friendly powers

must be a fixed intention. United States v. Quincy, 6 Pet. 445, 8 L. ed. 458; Moodie v. The Alfred, 3 Dall. 307, 319, 1 L. ed. 614; United States v. Guinet, 2 Id. 321, 1 L. ed. 398; The Meteor, 1 Am. L. Rev. 401, 17 Fed. Cas. 178. But it is not necessary that the vessel should be armed or manned for the purpose of committing hostilities before so leaving, if she is intended to be so fitted subsequently. The City of Mexico, 28 F. R. 148. And if the government files two libels against the same vessel, the one in prize, and the other in forfeiture, it cannot be required to elect between them. Id. The intent must be formed within the limits of the United States. The Laurada, 98 F. R. 983, 85 Id. 760.

An informer, in the legal as well as the ordinary sense of the term, is he who gives the information which leads directly to the seizure and condemnation, regardless of the questions of evidence furnished or interest taken in the prosecution. If the officer informed seizes upon the information given, that act vests an inchoate right in the informer who has given the information upon which the seizure was made, which is consummated by a condemnation. Officers who conveyed information received by them in their capacities as such to other officers, and gave no other information, have no rights as informers. The City of Mexico, 32 F. R. 105.

The entire crew of a vessel may share as informers; but United States naval officers, or consular agents who merely investigate in pursuance of orders, and report the knowledge thus acquired, do not gain the rights of informers. Id.; Sawyer v. Steele, 3 Wash. C. C. 464, 21 Fed. Cas. 583; The Chapman, 4 Sawyer, 501, 5 Fed. Cas. 471.

The forfeiture of a vessel in a civil suit in rem for her condemnation does not depend upon the conviction of a person or persons for doing the acts denounced; the word "people," as here used in connection with the words "colony" and

'district," covers any insurgent or insurrectionary "body of Arming vessels people acting together, undertaking and conducting hos- against tilities," although its belligerency has not been recognized. friendly The Three Friends, 166 U. S. 1, 49, 56, 41 L. ed. 897, 78 powers Fed. Rep. 175. "Neutrality, strictly speaking, consists in the abstinence from any participation in a public, private, or civil war, and in impartiality of conduct toward both parties; but the maintenance, unbroken, of friendly relations between two powers, when the domestic peace of one of them is disturbed, is not neutrality in the sense in which the word is used when the disturbance has acquired such head as to have demanded the recognition of belligerency." Fuller, C. J., in Ibid., 166 U. S. 52. See 31 Am. L. Rev. 456.

Section 5283 appears to presuppose two or more foreign belligerent powers, and not factions unrecognized by this government. The Conserva, 38 Fed. Rep. 431; The Itata, 56 Id. 505, 49 Id. 646; see 13 A. G. Op. 179. The proceeding under it is an ordinary suit in admiralty. The Conserva, supra. Unrecognized insurgents are no more than pirates as to depredations by them upon citizens or vessels of neutral nations. See The Huascar, 3 Wharton's Digest, 474; Snow's Int. Law, 205; 16 Law Mag. & Rev. (4th Series) 164, 179; 19 Id. 32. Sections 5283, 5286 do not apply to arms and munitions of war purchased here and carried to insurgents in a foreign country but not forming a part of the vessel's furnishings: The Itata, supra; The Carondelet, 37 Fed. Rep. 799; United States v. Trumbull, 48 Id. 99; United States v. The Resolute, 40 Id. 543; or to a vessel merely employed to transport them to a vessel which is so fitting out: United States v. The Robert and Minnie, 47 Fed. Rep. 84; or to money contributed to aid a foreign insurrection. Bailey v. O'Mahoney, 33 N. Y. Supr. Ct.

239.

The intent is material, and is sufficient to constitute the

statutory offense, the actual arming of the vessel here not being necessary. The City of Mexico, 28 Fed. Rep. 148; The Conserva, 38 Id. 431. The plan and intent must be formed here and not after the vessel reaches a foreign port. The City of Mexico, 24 Fed. Rep. 33; see 25 Id. 924, 32 Id. 105.

SECTION 12. Whoever, within the territory or jurisdiction of the United States, increases or augments, or procures to be increased or augmented, or knowingly is concerned in increasing or augmenting, the force of any ship of war, cruiser, or other armed vessel which, at the time of her arrival within the United States, was a ship of war, or cruiser, or armed vessel, in the service of any foreign prince or state, or of any colony, district, or people, or belonging to the subjects or citizens of any such prince or state, colony, district, or people, the same being at war with any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, by adding to the number of guns of such vessel, or by changing those on board of her for guns of a larger caliber, or by adding thereto any equipment solely applicable to war, shall be fined not more than one thousand dollars and imprisoned not more than one year.

This section is practically identical with U. S. Rev. Sts. § 5285. An augmentation of force, under this section, includes the taking on of a crew either of native American citizens or foreigners domiciled here (The Alerta v. Moran, 9 Cranch, 359, 3 L. ed. 758); also the increase here of the number or caliber of a foreign cruiser's guns, but not the repair of such vessel or her bottom. 5 A. G. Op. 336; United States v. Grassin, 3 Wash. C. C. 65, 26 Fed. Cas. 10. It is immaterial whether the persons enlisted by a foreign armed vessel were native American citizens or foreigners domiciled within the United States, since neither the law of nations nor the Acts of Congress recognize any distinction, except in respect to subjects of the State in whose service they are so enlisted, transiently within the United States. The Alerta, 9 Cranch, 359, 3 L. ed. 758.