hands of parties actively interested in promoting the insurrection, the claimants forfeited their right to the protection of the American flag, and are estopped from asserting any of the privileges of lawful intercourse in times of peace and any title to individual indemnity as against the acts of the Spanish authority done in self-defense." 1

On the rehearing of the case the umpire held that the infraction of international law by Spain was a matter between the United States and Spain to settle, but that the claimant himself by his unlawful act was estopped from pleading Spain's violation of international law. The capture of the Virginius (infra) on the high seas was treated by the United States as a national affront to the American flag, even though her flag and registration were "a fraud upon the navigation laws of the United States." 3

4

In the case of Wyeth and Speakman before the Spanish-United States Commission, claimants had landed in Cuba with an armed expedition, were taken prisoners by Spain, and summarily executed. It was contended by the United States that they were entitled to a fair trial according to the usages which had obtained currency among civilized states under martial law, and that the question of their innocence or guilt was for this purpose irrelevant.5 The umpire, Bartholdi, held, however, that the claimants having "left the United States with an expedition intending to invade the island of Cuba" and having landed there, they had "no right to recover damages from the government of Spain." Their execution was apparently justified on the ground that Spain could properly consider them public enemies, but

1 Campbell and Arango, captain and owner, respectively, of the Brig Mary Lowell (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2772–2777; Moore's Dig. II, 983–984. 2 The claimant in the case of Clark (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2749 was held equally estopped from pleading the unlawful character of the seizure of his prizes, when he must have violated the neutrality and the laws of the United States and its obligations in accepting and acting under the privateering commission by virtue of which the captures were made.

3 Williams, Atty. Gen., 14 Op. Atty. Gen. 340.

4 Wyeth and Speakman (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb., pp. 2777-79. 5 Mr. Webster, Sec'y of State, to Mr. Thompson, Minister to Mexico, April 15, 1842 in the case of the Santa Fé Expedition, 6 Webster's Works, pp. 427, 437; Lieber's "Instructions for the government of the armies of the United States in the field”; Scott's Digest of military law (1873), pp. 441 et seq., cited in Moore's Arb. 2778; see also Moore's Dig. III, 787.

even then they should have received a fair trial. Perhaps the umpire was influenced by the sweeping terms of President Taylor's proclamation in 1849. At all events, the case may be regarded as extreme, and not supported by the weight of authority.

§ 363. Executive and Judicial Rulings.

The United States and the British government have not accepted the view that a foreign government has the right to inflict arbitrary punishment upon their nationals engaged apparently in a hostile expedition against it, although the United States has declined to present claims for the capture of a vessel engaged in transporting an unlawful expedition, notwithstanding the innocence of the owner.1

In the case of the Virginius, this ship had by fraud obtained American registration. She was captured on the high seas, while flying the American flag, by a Spanish war-vessel, for carrying arms and ammunition to insurgents in Cuba. She was taken to Santiago, Cuba, and fifty-three of her crew and passengers, including British subjects, Americans and Cubans, after summary trial by court-martial, on the charge of piracy, were executed. In spite of the unlawful character of the expedition, both the United States and Great Britain demanded and secured for their injured citizens and their families a large indemnity, not because of the seizure of the vessel or detention of the passengers and crew, but because it was the duty of the Spanish authorities to prosecute the offenders in proper form of law, and to have instituted regular proceedings on a definite charge before the execution of the prisoners, and because Spain, although competent to apply the term "piracy," by its municipal laws, to various offenses other than those deemed piracy by the law of nations, could not, simply by applying the term, subject them to the penalties incurred by piracy under the law of nations.2

It has been observed that commercial adventures are not prohibited

1 Mr. Fish, Sec'y of State, to Mr. Buchanan, March 30, 1869, Moore's Dig. VII, 872 (case of the Georgiana, captured by Spain while engaged in the Lopez expedition to Cuba).

2 The Virginius, Moore's Dig. II, 895 et seq., 964-968, 980-983; Hall, op. cit., 6th ed., 262, 270. See also the case of the Competitor, Moore's Dig. VI, 123, 786.

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. 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.

2 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.