CHAPTER X. OFFENSES AGAINST NEUTRALITY. 234. Neutrality Generally. 234a. President's Power to Enforce Neutrality. 235. Accepting Foreign Commission. 236. Enlisting in Foregin Service. 237. Arming Vessels Against People at Peace With the United States. 238. Forfeiture Without Conviction. 239. Augmenting Force of Foreign Vessel of War. 240. Military Expeditions Against People at Peace With the United States. 241. Enforcement of Foregoing Provisions. 241a. The President's Authority Under This Section. 242. Compelling Foreign Vessels to Depart. 243. Armed Vessels to Give Bond on Clearance. 244. Detention by Collector of Customs. § 234. The word "neutrality," as used with reference to governments and international law, has no different meaning than that given to it in the ordinary course of affairs. The Century Dictionary defines it as "the state of being neutral, or of being unengaged in a dispute or contest between others; the taking of no part on either side; in international law, the attitude and condition of a nation or state, which does not take part, directly or indirectly, in a war between other states, but maintains relations of amity with all the contending parties." The 29 Volume of the "Cyc.", at page 675, citing the Three Friends, 166 U. S., page 1, 41 Law Ed., page 897, deduces that neutrality, strictly speaking, consists in abstinence from any participation in a public, private, or civil war, and impartiality of conduct toward both parties. That authority, continuing, says: "The nation which, while preserving its natural liberty and its independence, remains at peace while other nations are at war, and which continues to maintain with the two beligerent nations the friendly relations of commerce, or only of sociality, or of humanity, existing before the out-break of hositilities, may call itself neutral. This quality imposes upon it the obligations which may be summed up in two principles, and which embrace all the others: abstaining from all acts of hostility, direct or indirect: and perfect impartiality between the two nations at war, respecting all matters affecting the war." From these definitions, one readily discovers that neutrality, in a measure, interferes with the liberty and independence of the nation preserving that status. The United States was one of the earliest countries to preserve by law its neutrality with reference to conflicts between other governments and nationalities. While there are international punishments for a failure to observe the full measure of neutrality, the most effective preventive is the penal Code, which creates offenses under this head, and affixes punishments therefor; and in construing such statutes, the same rules are to be applied and observed as govern the construction of other penal statutes. § 234a. President's Power to Enforce Neutrality.District Judge Maxey in ex parte Orozco, 201 Federal, 106, questioned the power of the President to use the military power of the United States to arrest and imprison for neutrality violations and held that the fifth amendment to the Federal constitution guaranteeing immunity against being deprived of liberty without due process of law, and the fourth amendment declaring that warrants shall not be issued except on probable cause supported by oath or affirmation and the sixth amendment guaranteeing to the accused a speedy and public trial by a jury in the district where the crime was committed, were applicable to aliens sojourning in the United States, as well as to citizens, and in time of peace the President has no right to use the military force for arrest. The relator, who was a Mexican citizen, was discharged from the custody of the military authorities upon habeas corpus. The same district judge, in the case of United States vs. Chavez, held that the word export, which was used in the joint congressional resolution of March 14, 1912, which authorized the president to make proclamation against the exporting of arms or munitions of war under certain conditions, was limited to a transportation of arms or munitions of war from any place in the United States to "such country," that is, such foreign country; and hence a charge that accused with intent to export munitions of war from the city of El Paso to a place in Mexico in violation of the Presidential proclamation, did make a shipment of cartridges, etc., by transporting them on his person from one point in the city of El Paso to another point therein, did not charge a violation of the resolution, and sustained a demurrer to the indictment. § 235. Accepting Foreign Commission.-Section 9 of the new Code re-enacts old Section 5281, and is in the following language: "Sec. 9. Every citizen of the United States who, within the territory or jurisdiction thereof, accepts and exercises a commission to serve a foreign prince, state, colony, district, or people, in war, by land or by sea, against any prince, state, colony, district, or people, with whom the United States are at peace, shall be fined not more than two thousand dollars and imprisoned not more than three years." The wording of the statute bears the construction that the mere acceptance of a commission of the sort therein described would not create the offense. It is necessary that some overt act be committed under the commission, such as raising men for the enterprise, collecting provisions, munitions of war, or any other act which shows an exercise of the authority which the commission is supposed to confer. 29 Cyc., 678; in re Charge to Grand Jury, 30 Federal Case No. 18265, 2 McLean, 1. § 236. Enlisting in Foreign Service.-Old Section 5282 becomes Section 10 of the new Code, in the following words: "Whoever, within the territory or jurisdiction of the United States, enlists, or enters himself, or hires or retains another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people, as a soldier, or as a marine or seaman, on board of any vessel of war, letter of marque, or privateer, shall be fined not more than one thousand dollars, and imprisoned not more than three years." The Courts have held, in construing this section, United States vs. Obrien et al, 75 Federal, 900, that persons are not only prohibited from enlisting in this country as a solider of any foreign power, but they are also prohibited from hiring or retaining any other person to enlist or to go abroad for the purpose of enlisting. The Court also observes in that case, which seems to have been followed, that the statute does not prohibit persons within our jurisdiction, whether citizens or not, going as individuals to foreign states, and there enlisting in their armies, and that individuals may go abroad to enlist in any number and in any way they see fit; by regular line of steamers, by chartering a vessel, or in any other manner, either separately, or associated, provided always, that they do not go as a military expedition, or set on foot or begin within our jurisdiction a military expedition or enterprise, to be carried on for this country, or provide or prepare the means therefor. If, however, a military expedition or enterprise has in fact been prepared in this country, and carried by sea to a foreign shore, then all persons who planned for it, or prepared for it here, or knowingly took part in the transportation of it, are guilty under the statute. U. S. vs. Obrien, 75 Federal, page 900. § 237. Arming Vessels Against People at Peace with the United States.-Old Section 5238 becomes new Section 11, and is as follows: "Sec. 11. Whoever, within the territory or jurisdiction of the United States, fits out 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." The statute contains two methods of punishment, it will be noticed: one against the person, and one against the property; that is, the imprisonment of the offender and the forfeiture of his vessel. The Supreme Court of the United States in Wiborg et al vs. United States, 163 U. S., page 632, 41 Law Ed., page 289, in passing upon a case that originated in Pennsylvania, under Section 5286, hereinafter noted, the facts of which showed in substance, that the "Horsa,” a Danish steamer engaged in the fruit business at Philadelphia, cleared from Philadelphia for Jamaica, having only a small cargo; that thereafter, near Barnegat, off the Jersey coast, she was loaded with a cargo of men and rifles, swords, machettes, cartridges, and other munitions of war, which cargo was subsequently delivered to Cuba, where there was an insurrection of the Cubans against the Spaniards, said in substance, a military expedition or enterprise is entered upon when men with knowledge of the enterprise combine and organize in this country, and are carried with arms and ammunition under their control, by a tug, thirty or forty miles out to sea, to a steamer, on which they embark and drill, and by which they are taken to Cuba, where they disembark to effect an armed landing on the coast, with intent to make war against a government with which the United States is at peace; and in determining whether the combination was lawful or not, the declarations of those engaged in it, explanatory of acts done in furtherance of its object, are competent evidence after the combination has been proved. Another interesting authority under this section, as well as other sections under this chapter, is the Lauradra, 85 Federal, 760, which was a case that originated upon a similar state of facts to the Wiborg case, and was the loading of a fruit vessel off the American coast, near Barnegat, with men and munitions, for engagement in the Cuban revolution. In that case, the Court observed that while it was not the purpose of our neutrality laws in any manner to check or interfere with the commercial activity of citizens of the United States, or of others residing therein, and interested in commercial transactions, nor to render unlawful mere commercial ventures in contraband of war, they were designed to prohibit acts and preparations on the soil or waters of the United States not originating with a due regard for commercial interest, but of a nature distinctly hostile in a material sense |