by the neutrality laws, even when they consist in the sale of a fully armed vessel in a port of the United States or bound for a foreign port for sale, or in the sending of arms and munitions of war, by an individual, as merchandise, to an individual in or government of a belligerent country. The line between a commercial transaction of this kind and an unlawful expedition under the Revised Statutes (§ 5283) is often a narrow one and the solution of the matter turns on the question of intent. The fitting out and arming of the vessel must be coupled with the intent to employ her to cruise or commit hostilities against the subjects or property of a friendly state or people in order to bring her within the penalties of the United States neutrality acts.1 Of course, the shipment of arms and munitions of war subjects the property to the usual penalties of contraband, namely, confiscation by belligerents.

Lord Granville during the Carlist war of 1873 pressed for the restitution of two British steamers seized on the high seas by the Spaniards on suspicion of conveying arms to the insurrectionists. As the insurrectionists had not been recognized as belligerents, the capture was considered unlawful by the British minister, who demanded release of the vessels. On application by the owner to Lord Granville for redress on account of losses, he was told that when British subjects enter into speculation such as that in which these vessels were employed, they must not look to the British government for compensation or support if the expedition prove disastrous. Baty adds that it is a little curious why Great Britain interfered at all.2

(c) Unneutral Military Service and Other Acts

§ 364. Qualified Loss of Protection.

The United States neutrality laws do not prohibit its citizen from going abroad and there enlisting in the military service of a belligerent. The penalty imposed is simply a loss-and usually not a complete loss

1 The Meteor (1866), 17 Fed. Cas. No. 9,498; The Itata (C. C. A.), 1893, 56 Fed. Rep. 505; The Laurada (1898), 85 Fed. Rep. 760; The Conserva (1889), 38 Fed. Rep. 431; 5 Op. Atty. Gen. 92.

The Queen of the Seas, and The Deerhound, 65 St. Pap. 446, 513, 579, 725, cited and paraphrased in Baty, International law, 162.

of the right to national protection. The neutrality laws simply prevent the acceptance or exercise of a foreign commission, or service to a foreign people or state, within the United States, or illegal expeditions departing from the United States or organized within the United States for such service. The British Foreign Enlistment Act of 18701 provides the penalty of fine and imprisonment for any person who

"without the license of Her Majesty, being a British subject, within or without her Majesty's dominions, accepts or agrees to accept any commission or engagement in the military or naval service of any foreign state at war with any foreign state at peace with Her Majesty." 2

It has already been observed that the state owes no duty to other states to prevent its subject from going abroad to enlist in a hostile army. But if he does, he may incur certain penalties, which may be prescribed by the municipal law of his own state and which it may enforce as it deems proper. Usually, such service constitutes a violation of his national neutrality laws, and he incurs, besides, a partial loss of national protection. We say partial because if the citizen found in arms against a foreign government is subjected to unusual punishment by the foreign government, his own government will interpose to secure a mitigation or amelioration of the hardship, provided, of course, that he has not, by an unqualified oath of allegiance, expatriated himself. Secretary of State Webster expressed the status of individuals so found in arms against a foreign state, as follows:

"It is still the duty of this government to take so far a concern in their welfare, as to see that, as prisoners of war, they are treated according to the usages of modern times and civilized nations." 3

Should the citizen be killed in battle every possibility of claim is extinguished with him. He has by his unneutral conduct taken his life.

133 and 34 Vict. (1870), Ch. 90, § 4.

2 N. W. Sibley, The neutrality of Great Britain; The Foreign Enlistment Act (1870), 29 Law Mag. and Rev. 454–467; 30 ibid. 37-53. To effect that mere military service abroad does not denationalize, see Stevenson (Gt. Brit.) v. Venezuela, Ralston, 438, 454.

3 Webster's Works, VI, 436, see paraphrase in Moore's Dig. III, 787; Mr. Fish, Sec'y of State, to Mr. Williams, July 29, 1874, For. Rel., 1874, 300. See also papers of Theodore S. Woolsey and Arthur K. Kuhn in Proceedings of the American Soc. of Int. Law (1910), 99 et seq., 110 et seq., and E. P.Wheeler in 3 A. J. I. L. (1909), 880.

into his own hands. Should he, however, be taken prisoner, he must be treated according to the rules of war, and his national government will, according to precedent, enforce his rights in this respect.

The position of an alien serving with revolutionists to overthrow the government presents a delicate problem, in which the United States has several times been involved. It ought to be clear that if captured by the titular government he is subject to severe penalties, perhaps even more severe than those visited upon natives, for he was purely a mischief-maker and probably not fighting for patriotic reasons. If the punishment is fair and not violative of the rules of war, his national government will not interpose. Likewise, if his punishment is no greater than that inflicted on natives or on other aliens, his government will usually abstain from interfering. Only in three cases will his government manifest a protective interest in his behalf: (1) if his treatment has been inhuman; (2) if, while captured in an organized rebel army, the rules of war have been violated to his prejudice; (3) if he is discriminated against on account of his nationality as against other aliens. Professor Woolsey has concisely expressed the general rules governing an alien aiding an insurrection against the established government of a friendly state:

"(1) He is liable to all the risks of the situation on a par with the native;

(2) He may perhaps even be discriminated against because less excusable than the native;

(3) Yet by his treatment humanity must not be violated;

(4) Nor may he stand on a worse footing than other aliens, although self-defense will justify a good deal of severity." 1

This question was squarely presented in the case of Cannon and Groce, two American citizens captured in 1909 by the Nicaraguan president Zelaya while holding commissions as officers in the service of the forces of Estrada, unrecognized revolutionists. They were summarily executed, apparently without any kind of a fair trial. This outrage called forth from Secretary of State Knox a vigorous note in which he expressed the intention of holding "personally responsible the men who were to blame for the torture and execution" of these citizens, whatever that may mean. It is clear from this and other

1 Proceedings of the American Soc. of Int. Law (1910), 103.

cases that an alien taking up arms against a friendly state retains a large measure of his national protection. In the Cannon case, while the citizen was disloyal to the United States in fighting against the established government in Nicaragua, his government still insisted upon his being accorded the treatment of a prisoner of war.1 Protection in such cases usually takes the form of an amelioration or mitigation of harsh or extraordinary punishments. There is much to be said, however, for the view that when American citizens so completely identify themselves with a foreign state and its domestic affairs as to fight with rebels in violation of their natural obligations as neutrals, they forfeit all claim to the protective interest of their national government, a principle recognized in the protocol for the settlement of the Santos claim against Ecuador by the admission that claimant lost his standing if he had been "guilty of such acts of unfriendliness and hostility to the government of Ecuador, as, under the law of nations, deprived him of the consideration and protection due to a neutral citizen of a friendly nation." 3

2

The United States will generally not interpose to secure money damages for a citizen who has violated its neutrality laws. As Secretary Bayard expressed it: The Department of State will not present to a foreign government a claim based on transactions involving a violation of the neutrality of the United States. American citizens who implicate themselves in foreign revolutions have a very weak title to national protection, valuable only to prevent a flagrantly harsh violation of their persons through unusual forms of punishment. When Don Miguel's government was overthrown in Portugal in 1833 one of its generals, Sir J. Campbell, a British subject, was captured in a British vessel bearing Miguelist dispatches. On invoking British protection, Lord William Russell declared the general rule: "when

14 A. J. I. L. (1910), 674–675; Sec'y Knox's note in Supplement (1910), p. 249. 2 See Baty in 35 Law Mag. & Rev. (1910), 205-206. The British government appears to have exercised its good offices in several cases, appealing to the grace of the foreign government. Ibid. 206.

3 Santos v. Ecuador, Feb. 28, 1893, Moore's Arb. 1584 et seq.; Moore's Dig. III, 756; La Fontaine, 450.

Mr. Bayard, Sec'y of State, to Messrs. Morris & Fillette, July 28, 1888, Moore's Dig. VI, 623.

a military officer serves another sovereign his allegiance is to that sovereign, and his rights as an Englishman cease." Lord Palmerston concurred in the opinion but remonstrated mildly on Campbell's continued close imprisonment as contrary to the usage of war.1

In the case of Nolan before the British-American Commission of 1871,2 an award was made in spite of the proven unneutral conduct of the claimant because the prison in which he was detained was wholly unfit for use and his treatment at times harsh and cruel.

Secretary of State Webster in 1842 stated that a citizen engaged as a combatant in a foreign country, captured by the other belligerent within its jurisdiction, forfeits the protection of his own government,3 a principle which must probably be understood within the limitations above expressed. Mr. Fish, referring to a steamer chartered by an American citizen to the Haitian government as an auxiliary to military operations for the suppression of an insurrection against Haiti, stated that such a vessel

"must be regarded as relying exclusively upon the protection of that power, and [as] abjuring, while such employment continues, any claim to the protection of the United States." 4

Provided the citizen thus engaged is not suffering from or threatened with an extraordinary or unusual punishment or hardship, this view is not incorrect.

Secretary of State Sherman in stating that the United States could not interfere to compel the employing government of Guatemala to pay for the services of a vessel voluntarily carrying arms and troops for such government while trying to put down an insurrection added: "it would leave the vessel and its crew so voluntarily entering into such service to the consequences of establishing such a relation." 5

The service of an American vessel in the transport service of Great Britain during her war with France, the vessel being chartered to carry

123 St. Pap. 1263, cited by Baty, International law, 98-99.

2 Nolan (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3302; Hale, 79.

3 Mr. Webster, Sec'y of State, to Mr. Peyton, Jan. 6, 1842, Moore's Dig. III, 787.

4 Mr. Fish, Sec'y of State, to Mr. Bassett, Sept. 15, 1869, Moore's Dig. II, 1073. See also Mr. Foster, Sec'y of State, to Mr. Scruggs, Sept. 30, 1892, ibid. 1075. Mr. Sherman to Mr. Coxe, April 21, 1897, For. Rel., 1897, p. 332.