does not expressly say, as the British Act of Parliament does, whether any enlistment money, pay, or reward shall have been given and received or not' (Act 59 Geo. III, ch. 69, sec. 2), nor was it necessary to insert these words. A party may be retained by verbal promise, or by invitation, for a declared or known purpose. If such a statute could be evaded or set at naught by elaborate contrivances to engage without enlisting, to retain without hiring, to invite without recruiting, to pay recruiting money in fact, but under another name of board, passage money, expenses, or the like, it would be idle to pass acts of congress for the punishment of this or any other offense. Suppose, for instance, that the British government shall have said to its officers, civil or military, in the British North American Provinces, and to its diplomatic or consular agents in the United States: 'You will proceed to raise so many men in the United States; but remember that to do so is forbidden by the municipal law of that country, and is indictable as a misdemeanor. You will, therefore, take care to proceed cunningly in this, so as not to incur the penalties of the statute.' Such instructions, while they might have the effect of raising the troops, as desired by the British government, without its agents incurring the penalties of the statute, would but constitute a more flagrant and aggravated violation of the national dignity and the sovereign rights of the United States."

What constitutes complete hiring or retaining. If there is an engagement on the one side to go beyond the limits of the United States with the intention to enlist, and on the other side an engagement that when the act shall have been done a consideration shall be paid to the party performing the services, the hiring and retaining are complete. U. S. v. Hertz, (1855) 3 Pittsb. Leg. J. (Pa.) 194, 26 Fed. Cas. No. 15,357.

Payment of money not essential. The hiring or retaining contemplated by the statute does not necessarily include the payment of money on the part of the person who hires or retains, but may be by a promise to pay after the person hired or retained has gone beyond the limits of the United States with intention of enlisting. Nor is it necessary that the consideration of the hiring shall be money. U. S. r. Hertz, (1855) 3 Pittsb. Leg. J. (Pa.) 194, 26 Fed. Cas. No. 15,357. It is the hiring of a person to go beyond the limits of the United States, that person having the intention to enlist when he gets out of the limits of the United States, and his intention being known to the party hiring and being a part of the consideration before the hiring, that defines the offense. U. S. v. Hertz, (1855) 7 F. S. A.-15

3 Pittsb. Leg. J. (Pa.) 194, 26 Fed. Cas. No. 15,357.

Proof of hiring or retaining necessary.

In a prosecution under this statute for hiring or retaining another to enlist, the hiring and retaining in the United States and the intent with which the person was so hired or retained must be proved. U. S. v. Kazinski, (1855) 2 Sprague 7, 26 Fed. Cas. No. 15,508.

Alleging intent. In a prosecution under the statute for hiring or retaining another to enlist the indictment must allege the intent of the person hired. U. S. v. Kazinski, (1855) 2 Sprague 7, 26 Fed. Cas. No. 15,508.

Consent to enlist necessary. To constitute the offense of enlisting in the United States, the consent of the party enlisting is necessary. Also the hiring or retaining of a person to go aboard with intent to be enlisted requires the assent and intent on the part of the persons so hired or retained. U. S. v. Kazinski, (1855) 2 Sprague 7, 26 Fed. Cas. No. 15,508.

Proof of intent. The intention of the party hired or retained to enlist is gathered from his conduct and declarations in the United States and after he reaches the foreign country, and from the action of third persons with whom he perfects the enlistment which he may have contracted in the United States. U. S. v. Hertz, (1855) 3 Pittsb. Leg. J. (Pa.) 194, 26 Fed. Cas. No. 15,357.

Testifying as to intent. In a prosecution under the statute for hiring or retaining persons to enlist, persons alleged to have been hired may testify as to their intent without criminating themselves. U. S. r. Kazinski, (1855) 2 Sprague 7, 26 Fed. Cas. No. 15,508.

Declarations to show intent.- In а prosecution under the statute for hiring or retaining persons to enlist, for the purpose of showing the intent with which the persons alleged to have been hired were leaving the country, their declarations while on board the vessel and on their way to the place where the enlistment is to be consummated were admissible, in so far as they are made within the district in which the prosecution is brought. Declarations of their prior intention at another point are not admissible in the absence of proof of the hiring or retaining by the defendant within the district in which the suit was brought. U. S. r. Kazinski, (1855) 2 Sprague 7, 26 Fed. Cas. No. 15,508.

Restoration of prize taken by unlawful crew. Prize goods taken by a neutral war ship with a crew unlawfully enlisted in the United States must be restored to the original owner when they are brought within the power of the United States. Chacon v. Eighty-Nine Balls Cochineal,

(1821) 1 Brock. 478, 5 Fed. Cas. No. 2,568.

Burden of proof. In a proceeding by the owner for the restitution of a vessel condemned as prize, on the ground that the force of the captor, a foreign vessel, had been increased by enlistment in the ports of the United States, the burden in the first instance of showing that this increase within the prohibition of the statute has taken place, is on the owner. When this has been done, the burden is on the captors to show that persons so enlisted were within the exception provided by R. S. sec. 5291, now constituting sec. 18 of this chapter, infra, p. 483. The Estrella, (1819) 4 Wheat. 298, 4 U. S. (L. ed.) 574.

On a trial for violation of this section the court has no power to direct the jury to return a verdict of guilty, pursuant to an agreed statement of facts between the government and the defendant, regardless of the jury's own view respecting the proper conclusion to be drawn from the facts agreed upon. Blair . U. S. (C. C. A. 9th Cir. 1917) 241 Fed. 217, 154 C. C. A. 137, reversing for that reason a judgment of conviction in (N. D. Cal. 1915) 228 Fed. 77, and holding that the constitutional right to trial by jury in a criminal case cannot be waived.

On the trial of an indictment for conspiracy to violate this statute the court said: "It must be observed that the prohibition of the statute is not aimed at the hiring or retaining by or of citizens of this country alone, but at the hiring or retaining by any person whomsoever of any other person. It is to be observed, further, that the hiring or retaining must be to go without the limits of this country with intent to enlist. The fact that other countries, having laws for compulsory military service, have assisted their subjects in this country to return to their native land, is a false quantity here, and one with which we have nothing to do. It throws no light upon the questions which we are to consider. The case on trial must be determined upon its own particular facts, without regard to what has been done either here or elsewhere by persons not included in the present indictment. Nor is there here involved any question as to the right of individuals to go from this country either singly or in groups to another country with intent there to enlist. The sole question here is: Do the facts before us show a con

spiracy on the part of defendants to violate the statute which we have been considering? U. S. r. Blair-Murdock Co., (N. D. Cal. 1915) 228 Fed. 77, per Dooling, J.

Evidence. In U. S. v. Blair-Murdock Co., (N. D. Cal. 1915) 228 Fed. 77, an indictment for conspiracy to violate this section, the salient facts of the case as recited by the court, were held sufficient to demand conviction for conspiracy to secure men to return to Great Britain and enlist, although none of the defendants expressly said in words to any of the men that they should enlist in the service of Great Britain as soldiers, sailors, or marines, and although the defendants may have believed they were acting within the law.

Civil liability. In Juando v. Taylor, (1818) 2 Paine 652, 13 Fed. Cas. No. 7,558, the defendant was sued for damages on account of his seizure in 1816, of a vessel and cargo of the plaintiff, a Spanish subject, there being at that time a civil war between the colony of Buenos Ayres and Spain, and the defendant's acts having been committed as commander of Buenos Ayrean ship of war, to which government the defendant had sworn allegiance. The court, Van Ness, J., held that the defendant was not liable. In the first place, it was decided that, on the evidence, the defendant had expatriated himself. See annotation from the opinion in the notes to sec. 9 of this chapter, supra, at p. 425. The court also said: "I think he cannot be prosecuted in a civil suit. Nothing is more common in Europe than for the subjects of one government to enter the military service of another and they certainly incur none but the common hazards of war. It has never been pretended that they were subject to any personal liabilities not common to the original parties in the war; it is a matter of state, and the authority or government under which they act is alone responsible for their conduct." In Chacon . Eighty-Nine Bales Cochineal, (1821) 1 Brock. 478, 5 Fed. Cas. No. 2,568, a prize case, involving the validity of a capture in 1817, Chief Justice Marshall said: "I think that an American citizen may, according to the modern usage of nations, engage in foreign service, without compromising the neutrality of his government. I do not perceive any solid distinction between the land and naval service in this particular."

f. Disposition

share, 454

10. Civil liability for seizure, 454 VII. Restoration of prizes, 456

I. PURPOSE AND CONSTRUCTION OF STATUTE 1. Purpose in General

The purpose of the enactment "is that the United States shall not be compromised in its relations with friendly powers by the use of its soil or waters for furnishing, fitting out, or arming of vessels, or the making of preparations therefor, with the hostile intent that they should cruise or commit hostilities against those powers. Hostile conduct meditated and originating wholly beyond our soil and waters is not within the scope of the section." The Laurada, (D. C. Del. 1898) 85 Fed. 760. "The purpose of the neutrality laws is, however, to prohibit acts and preparations on the soil or waters of the United States, not originating from a due regard for commercial interest, but of a nature distinctively hostile in a material sense to a friendly power, engaged in hostilities, and calculated or tending to involve this country in war, whether an incidental or indirect commercial profit does or does not result from them." The Laurada, (D. C. Del. 1898) 85 Fed. 760. "The offense designated by this law was, anterior to the passage thereof, a high offense against the sovereignty of the United States, and in contravention of the law and usages of independent neutral nations. But the difficulties which must ever exist in a government of limited and specified powers, in applying the punishment to the infraction of a law which cre

ated no specific penalty, as well as the doubts on the question, where does the sovereignty (as applied to the government) of the United States reside? induced the necessity of providing by an ordinary act of legislation for the punishment of such cases." U. S. r. The Unicorn, (1796) 3 Am. Law J. 188, 27 Fed. Cas. No. 15,979a, per Winchester, J.

2. Construction, in General

a. Classification of Offenses "The offenses set out in the section must have been committed within the limits of the United States, and are properly classified thus: First. The fitting out and arming by any person of any vessel, with the intent on the part of such person that she shall be employed in the serv. ice of any foreign state, or of any people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any people, with whom the United States are at peace. Second. The attempting by any person to fit out and arm any vessel with the like intent. Third. The procuring by any person, to be fitted out and armed, any vessel with the like intent. Fourth. The being knowingly concerned by any person in the furnishing of any vessel with the like intent. Fifth. The being knowingly concerned by any person in the fitting out of any vessel with the like in tent. Sixth. The being knowingly concerned by any person in the arming of any vessel with the like intent. Seventh. The issuing or delivering by any person of a commission, within the territory or jurisdiction of the United States, for any ship or vessel, to the intent that she may be employed as aforesaid. If any one of these offenses has been committed, the vessel in respect to which it is committed is, with her tackle, etc., to be forfeited.” The Meteor, (1866) 1 Am. L. Rev. 404, 17 Fed. Cas. No. 9,498, reversed on other grounds in (1868) 3 Am. L. Rev. 173, 26 Fed. Cas. No. 15,760.

b. Rules of Construction

The statute being highly criminal and penal is not to be enlarged by construction beyond the fair import of its terms. The Carondelet, (S. D. N. Y. 1889) 37 Fed. 799; The Itata, (C. C. A. 9th Cir. 1893) 56 Fed. 505, 15 U. S. App. 1, 5 C. C. A. 608. "This statute is a criminal and penal one, and is not to be enlarged beyond what the language clearly expresses as being intended. It is not the privilege of courts to construe such statutes according to the emergency of the occasion, or according to temporary questions of policy, but according to principles considered to have been established by a line of judicial decisions." Three Friends, (S. D. Fla. 1897) 78 Fed. 175, affirmed (C. C. A. 5th Cir. 1898) 89

The

Fed. 207, 32 C. C. A. 191; but see, on certiorari, (1897) 166 U. S. 1, 17 S. Ct. 495, 41 U. S. (L. ed.) 897. But no technical view resting solely upon the narrow or limited meaning of any particular word should be adopted, if, by the context, a different meaning appears to have been intended. It should be construed in connection with, and in the light of, other provisions in other parts of the statutes in relation to international subjects, although such statutes may be classed under different headings, provided that, in the absence of such a division and classification, a comparison of all these provisions will be proper. The Itata, (C. C. A. 9th Cir. 1893) 56 Fed. 505, 15 U. S. App. 1, 5 C. C. A. 608.

"The language of the Act of 1818 is not ambiguous, and does not admit of any latitude of construction, nor is there any provision in any section of it conflicting with any provision in any other section of it. It is, therefore, unnecessary to look outside of the statute for any aid in arriving at the intention of the legislature in its enactment." The Meteor, (1866) 1 Am. L. Rev. 401, 17 Fed Cas. No. 9.498, reversed on other grounds in (1868) 3 Am. L. Rev. 173, 26 Fed. Cas. No. 15,760.

3. Statute Not Applicable to Augmentation

The provision relates to an original fitting out or arming and not to the augmentation of the force of a vessel by adding to the number of its guns, or by exchanging its guns for others of larger calibre, or by the addition of any equipment solely applicable to war. These offenses are provided for, in the next following section. Violation of Neutrality Act, (1844) 4 Op. Atty.-Gen. 336.

4. Persons and Vessels to Which Applicable

a. In General

"It must be regarded as the settled interpretation of the third section of the Act of 1818, that that section applies to every person who is engaged within the United States, directly or indirectly, in preparing a vessel with the intent that she shall be employed in committing hostilities against any power with which the United States are at peace, and to every such vessel, whether such vessel be armed in the United States or not, or be intended to be armed in the United States or not." The Meteor, (1866) 1 Am. L. Rev. 401, 17 Fed. Cas. No. 9,498, reversed on other grounds in (1868) 3 Am. L. Rev. 173, 26 Fed. Cas. No. 15,760.

On a prosecution of Aguirre and others for furnishing, etc., armed vessels in violation of the statute, Mr. Justice Livingston said: "As to any privilege which Mr. Aguirre's commission conferred

on

him, the judge was of opinion that this gentleman, not being accredited by the president, and the independence of Beunos Ayres not being acknowleged by the government of the United States, he was liable to be proceeded against for any offense which he might commit against our laws, in the same way as any other individual." U. S. v. Skinner, (1818) Wheel. Crim. (N. Y.) 232, 27 Fed. Cas. No. 16,309.

b. Act of Foreign Government

"The purchase and fitting out of a war steamer by the German government in the port of New York, whilst a state of war exists between that government and Denmark, and which is adapted for cruising and committing hostilities against the property or subjects of the latter, is contrary to the provisions of the third section of the Act of 20th April, 1818." Violation of Neutrality Act, (1849) 5 Op. Atty. Gen. 92.

Building of vessel by foreign government. The building of two schooners of war by a foreign government in the limits of the United States with the intention of furnishing them with guns and the usual military equipment, the foreign government at the time being at war with another government with which the United States are at peace, renders the persons liable to the penalties of the Act and the vessels liable to forfeiture. Violation of Neutrality Act, (1841) 3 Op. Atty. Gen. 738.

No

II. INGREDIENTS OF OFFENSE 1. "Within the Territory or Jurisdiction" Arming on high seas." When the arming is on the high seas, through another vessel, proof that both were dispatched from our ports as parts of a concerted scheme made here, is justly held proof of an attempt, within the limits of our jurisdiction, to fit out and arm' the vessel with intent to commit hostilities, and hence within the statute. That construction is necessary to avoid easy and manifest evasions of neutrality; for arming on the high seas is not an act within the limits of any other jurisdiction. other state has any power, control, or responsibility in the matter; but our own ports become in such cases the real base of hostile operations. It is otherwise when the arming is designed to be in a foreign port, and under the observation, the control, and the responsibility of another government. That is not an attempt here to fit out and arm the vessel, but only an attempt to send her to a foreign port for arming. The statute does not include that, and ought not to be extended to such a case. There is no precedent, and no sufficient reason for it." The Carondelet, (S. D. N. Y. 1889) 37