and which has, indeed, been a most important contributing factor in developing the international law of neutrality.1 On April 22, 1793, Washington issued his celebrated proclamation of neutrality in which he declared that no citizen would be protected against punishment, or any forfeiture which he might incur under the law of nations by

committing, aiding, or abetting hostilities against any of the said [belligerent] powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations";

and the important announcement was made that the President had instructed the proper officers to institute prosecutions against persons violating the proclamation. It having been impossible, under the existing law, to convict a certain Henfield for having shipped on a French privateer, the Neutrality Act of June 5, 1795 was passed. Its provisions were continued and elaborated in various acts up to that of April 12, 1818, which act has since been incorporated into the Revised Statutes, §§ 5281 to 5291.

By the terms of these sections of the Revised Statutes a citizen within the United States is prevented from accepting or exercising a commission to serve in war against a friendly nation, or to enlist on an armed vessel of a foreign state (§ 5281); he is forbidden to fit out or arm a vessel with intent to employ it in the service of a foreign state or people (§ 5282); to cruise or commit hostilities against the subjects of a friendly state or people (§ 5283); or to augment the forces of any foreign ship of war (§ 5285); or to begin or set on foot within the United States, a military expedition against a friendly people (§ 5286); and armed vessels leaving the United States are required to give bond that they will not be employed to commit hostilities against the subjects of a friendly state or people (§ 5289). These acts are intended to prevent a citizen from compromising the neutrality of the United States in any way. They do not, however, prevent an individual from leaving the country with intent to enlist

1 Our early political history in matters of neutrality, with the early statutes and the cases thereunder, is presented by Dana in an elaborate note to Wheaton's Elements of international law, Boston, 1866, note 215, pp. 53 et seq. See also Fenwick, C. G., The neutrality laws of the United States, Washington, 1913, ch. II; Moore's Dig. VII, § 1292 et seq.

in foreign military service.1 The British Foreign Enlistment Acts of 1819 and 1870 are equally intended to prevent a violation by British subjects of British neutrality. They have followed closely the terms of the American acts, except that the Act of 1870 apparently prohibits a British subject from taking service under a foreign state or people against a friendly state either within or without the British territory.2

§ 361. Effect of Participation in Unlawful Expeditions upon Protection. In the diplomatic history of the United States numerous occasions have presented themselves in which it was necessary for the United States to define its position on the effect which the organization in or departure from the United States of unlawful expeditions against friendly peoples or states would have on the protection ordinarily extended to citizens of the United States. The revolutions in Cuba have frequently furnished opportunities for adventurous spirits to organize expeditions in aid of the Cubans, and the internal troubles in Mexico and other Central and South American states have likewise given occasion for the organization of expeditions for the assistance of one or the other of the contending parties.

President Taylor, on being informed that such armed expeditions were being fitted out in the United States, issued in 1849 a proclamation in which he warned

"all citizens of the United States who shall connect themselves with an enterprise so grossly in violation of our laws and our treaty obligations, that they will thereby subject themselves to the heavy penalties denounced against them by our acts of congress and will forfeit their claim to the protection of their country. . No such persons . . . must expect the interference of this government in any form on their behalf, no matter to what extremities they may be reduced in consequence of their conduct." 3

1 U. S. v. Hertz (1855), 26 Fed. Cas. No. 15,357; U. S. v. Nunez (1896), 82 Fed. Rep. 599; U. S. v. O'Brien (1896), 75 Fed. Rep. 900.

2 Oppenheim, II, 375, 376.

3 The Proclamation of President Taylor, Aug. 11, 1849, 9 Stat. L. 1003, Richardson's Messages, V, p. 7, cited in Moore's Dig. III, 787-788; see also Proclamation of President Fillmore, April 25, 1851, Richardson's Messages, V, p. 111, Moore's Dig. III, 788. The principle announced has since been greatly modified; see Proclamation of President Cleveland, 1895, Richardson's Messages, IX, p. 591. On the

As will be noted, while diplomatic protection is to some extent forfeited by transgressors of the kind referred to in the proclamation, they are still protected against violent invasion of their rights of trial or against cruel and inhuman treatment. While the neutrality acts of Great Britain and the United States already impose upon these countries greater obligations than international law requires, the President of the United States has on several occasions by special order still further increased the duties of the United States by forbidding the exportation of arms to disturbed areas, considering such an act as a breach of neutrality.

These orders have been promulgated in the case of countries in close proximity to the United States, the disturbed condition of which may constitute a menace for the United States, the orders being justified upon the same grounds which support intervention under similar circumstances. Thus, the joint resolution of March 14, 1912, introduced in the Senate by Mr. Root, authorizes the President to forbid in his discretion the exportation of arms or munitions of war to American countries in which he shall find conditions of domestic violence to exist, and declares that any shipment of such material made after the issue of the President's Proclamation "shall be punishable by fine not exceeding ten thousand dollars or imprisonment not exceeding two years, or both." On the same day, the President issued the proclamation provided for in the resolution by declaring formally that "conditions of domestic violence promoted by the use of arms or munitions of war procured from the United States as contemplated by the said joint resolution" do in fact exist, and he warned all persons that violations would be rigorously prosecuted.1

This takes out of the category of lawful commercial enterprises, under the exceptional circumstances mentioned, a transaction hitherto regarded as perfectly legitimate. There is now a general movement to further increase neutral obligations by preventing money from being supplied to belligerents by citizens of neutral countries, not to

law of hostile military expeditions, written principally from the point of view of the responsibility of the state therefor, see R. E. Curtis in 8 A. J. I. L. (1914), 1–37, 224-255, reprinted as a Wisconsin doctor's dissertation.

1 37 Stat. L. 630; U. S. v. Chavez, 228 U. S. 525; Fenwick, op. cit., 58.

mention the agitation, stimulated by the European War, for prohibiting completely the export of arms and munitions of war.

§ 362. Cases before International Tribunals.

Several cases of unlawful expeditions which have occurred in the diplomatic history of the United States have come for adjudication before international tribunals. In one of the most important of these cases, certain American citizens purporting to act in the interests of a revolutionary party in Mexico entered into an agreement with one Zerman, an officer of the French navy, to take command of an expedition to sail from San Francisco on a vessel purchased by them. A vessel and arms were purchased from American citizens, passengers and freight solicited, and a crew which had knowledge of the expedition placed on board. Three days after sailing the warlike nature of the enterprise was fully revealed by Zerman appearing in a Mexican uniform, the English flag being lowered and the Mexican hoisted in its place. Some of the passengers had no guilty knowledge of the nature of the expedition until that time. The vessel while on the way to Mexico chartered an American whaling ship with her captain and crew. On arrival at Mexico, she was seized, the passengers and crew arrested and, under harsh circumstances, marched to the interior and subjected to great cruelty.

Claims were brought on behalf of the owner of the first vessel, of the person who supplied the arms, of the crew, of the passengers, of the owner and captain of the chartered vessel, and others. It was held by Thornton, umpire of the 1868 commission with Mexico, that those who had guilty knowledge of the purpose of the expedition could not receive the protection of the United States in recovery, certainly so far as the seizure of the vessel and goods was concerned. This decision applied to the owner of the original vessel, the Archibald Gracie,1 and to the person who had furnished the arms and ammunition for the expedition,2 as well as to passengers who had guilty knowledge

1 Dennison (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2767.

2 Gros (U. S.) v. Mexico, Moore's Arb. 2771. This was, however, dictum, inasmuch as Thornton held that Gros had not acquired United States citizenship, and dismissed the claim on that ground.

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of the nature of the expedition, or who, by ignorance, showed an absence of prudence.2 In these cases, however, in spite of the culpable conduct of the claimant, the umpire allowed sums, "the lowest possible amounts," as he said, for the unnecessary and illegal delay in proceeding with their trial and for the harsh treatment imposed upon them by the Mexican authorities. In the case of innocent passengers having no knowledge of the nature of the expedition, compensation was allowed for their property seized. The owner of the second vessel, the Rebecca Adams, which had been chartered by her captain to Zerman without the owner's knowledge, was held entitled to the full value of the vessel, as the Mexican authorities had not released it within a reasonable time. The captain of that vessel, the umpire held, should have known the illegal nature of the expedition, but damages were awarded for his loss of private property and for harsh treatment and illegal delay in trial, the umpire taking account, in reducing the damage, of his indiscretion in chartering the vessel to Zerman. The officers and crew of the chartered vessel were compensated for the loss of private property as well as for harsh treatment and illegal delay in trial.

The Spanish-United States Mixed Commission of Feb. 12, 1871 dealt with the case of the Mary Lowell which had cleared from New York in 1869 for a Mexican port, but actually carried a cargo of munitions of war for the insurgents in Cuba. She was abandoned at the Bahamas by her captain and crew and suffered by her captain to come into the possession of parties interested in promoting the Cuban cause. While leaving the British port she was seized by a Spanish vessel, taken to Havana, and condemned as prize. Baron Blanc (Italy), the umpire, admitted that she had been captured by the Spanish forces in violation of international law, yet, said he:

"As the cargo consisting of arms, ammunition, and other military supplies, was admittedly intended by its owner . . for the benefit

of insurgents against the Spanish government, and as the brig was allowed [by her captain] either willfully or negligently, to fall into the

1 McCurdy (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2769.

2 Dolan (U. S.) v. Mexico, July 4, 1868, ibid. 2767-2768.

3 Cootey (U. S.) v. Mexico, July 4, 1868, ibid. 2770.

♦ Andrews (U. S.) v. Mexico, July 4, 1868, ibid. 2769–2771.