"In the mean time the matter acquired additional importance by the recruitments in the United States not being discontinued, and the dis closure of the fact that they were prosecuted upon a systematic plan devised by civil authority; that recruiting rendezvous had been opened in our principal cities, and depots for the reception of recruits estab lished on our frontier; and the whole business conducted under the supervision and by the regular co-operation of British officers, civil and military, some in the North American provinces and some in the United States. The complicity of those officers in an undertaking which could only be accomplished by defying our laws, throwing suspicion over our attitude of neutrality, and disregarding our territorial rights, is conclusively proved by the evidence elicited on the trial of such of their agents as have been apprehended and convicted. Some of the officers thus implicated are of high official position, and many of them beyond our jurisdiction, so that legal proceedings could not reach the source of the mischief.

"These considerations, and the fact that the cause of complaint was not a mere casual occurrence, but a deliberate design, entered upon with full knowledge of our laws and national policy, and conducted by responsible public functionaries, impelled me to present the case to the British Government, in order to secure, not only a cessation of the wrong, but its reparation. The subject is still under discussion, the result of which will be communicated to you in due time."

President Pierce, Third Annual Message, 1855.

As to dismissal of British minister on this ground, see supra, § 84

As to the right voluntarily to enlist, see supra, § 392.

If a public armed vessel of a belligerent violate our neutrality by unlawfully enlisting men in our ports, the property captured by her on the ensuing cruise will, if brought within the territorial limits of the United States, be restored to the original owners.

The Santissima Trinidad, 7 Wheat., 283.

A contract between citizens of the United States and an inhabitant of Texas, to enable him to raise men and procure arms to carry on the war with Mexico, the independence of Texas not having been acknowledged by the United States, was held contrary to our national obligations to Mexico, and violative of our public policy. It cannot, therefore, be specifically enforced by a court of the United States.

Kennett v. Chambers, 14 How., 38.

Colombian vessels are entitled, under articles 6 and 31 of the treaty with that Republic of 1824, to make repairs in our ports when forced into them by stress of weather, but not to enlist recruits there, either from our citizens or from foreigners, except such as may be transiently within the United States.

2 Op., 4, Wirt, 1825.

The enlistment at New York of seamen or others for service on war vessels of Mexico (she being at war with Texas), such persons not being Mexicans transiently within the United States, is a breach of the act of 1818.

4 Op., 336, Nelson, 1844.

The attempt by one Government to enlist troops in the territory of another, without the latter's consent, is just cause of war.

7 Op., 367, Cushing, 1855.

Foreign levies may not be allowed to one belligerent and refused to the other, consistently with the duties of neutrality.

Ibid.

A foreign minister who engages in the enlistment of troops here for his Government is subject to be summarily expelled from the country; or, after demand of recall, dismissed by the President.

Ibid. Supra, § 84.

If agents of the British Government, being instructed to enlist military recruits, succeed in evading the municipal law and so escape punishment as malefactors, "such successful evasion serves to increase the intensity of the international wrong done the United States."

8 Op., 468, Cushing, 1855. See ibid., 476, Cushing, 1856. 34th Cong., 1st sess., House Ex. Doc. 107.

For dismissal of British minister and consul, see supra, § 84.

For indictment in U. S. v. Hertz, for illegal recruiting, see Whart. Prec., 1123.

(2) OR ISSUING OF ARMED EXPEDITIONS.

§ 395a.

"The aiding either party, then, with vessels, arms, or men, being unlawful by the law of nations, and not rendered lawful by the treaty, it is made a question whether our citizens, joining in these unlawful enterprises, may be punished. The United States being in a state of peace with most of the belligerent powers by treaty, and with all of them by the laws of nature, murders and robberies committed by our citizens, within our territory, or on the high seas, on those with whom we are so at peace, are punishable, equally as if committed on our own inhabitants. If I might venture to reason a little formally, without being charged with running into subtilties and aphorisms, I would say that if one citizen has a right to go to war of his own authority, every citizen has the same. If every citizen has that right, then the nation (which is composed of all its citizens) has a right to go to war, by the authority of its individual citizens. But this is not true either on the general principles of society, or by our Constitution, which gives that power to Congress alone and not to the citizens individually. Then the first position was not true, and no citizen has a right to go to war of his own

authority; and for what he does without right he ought to be punished. Indeed, nothing can be more obviously absurd than to say that all the citizens may be at war, and yet the nation at peace. It has been pre. tended, indeed, that the engagement of a citizen in an enterprise of this nature was a divestment of the character of citizen, and a transfer of jurisdiction over him to another sovereign. Our citizens are certainly free to divest themselves of that character, by emigration, and other acts manifesting their intention, and may then become the subjects of another power, and free to do whatever the subjects of that power may do. But the laws do not admit that the bare commission of a crime amounts of itself to a divestment of the character of citizen, and withdraws the criminal from their coercion."

Mr. Jefferson, Sec. of State, to Mr. Morris, Aug. 16, 1793. MSS. Inst., Ministers.

In 1806 an expedition was concocted in New York by Miranda, a Spanish adventurer, for the invasion of Spanish America. On the trial of Smith and Ogden at New York for participation in this enterprise, the defendants offered to prove that the President had approved of the enterprise after due notice to him of its character. The court held that the testimony was irrelevant, as prior approbation by the President of an illegal act would not condone it. "Although the charge of the judge was strongly against the defendants, and there was no question as to the law, the jury returned a verdict of not guilty."

Note by Mr. W. B. Lawrence in 2 Whart. Cr. Law, § 1908. See this case noticed in other relations, infra, § 404.

In instructions from Mr. Madison, Sec. of State, to Mr. Armstrong, Mar. 14,
1806, it is shown that prompt and rigorous measures were taken by the
Government to suppress this expedition.

A report on petition of citizens alleging that they were ignorantly drawn into
Miranda's expedition and were subsequently held in slavery by the Spanish
Government is in Ex. Doc., June 9, 1809, 11th Cong., 1st sess.

"Miranda had the address to make certain persons of New York, among others Col. W. Smith, the surveyor, believe that on his visit to Washington he had enlisted the Executive in a secret sanction of his project. They fell into the snare, and in their testimony, when exam ined, rehearsed the representations of Miranda as to what passed between him and the Executive. Hence the outcry against the latter as violating the law of nations against a friendly power. The truth is the Government proceeded with the most delicate attention to its duty, on one hand keeping in view all its legal obligations to Spain, and on the other not making themselves, by going beyond them, a party against the people of South America. I do not believe a more unexceptionable course was ever pursued by any Government."

Mr. Madison, Sec. of State (unofficial), to Mr. Monroe, Mar. 10, 1806. 2 Madison's Writings, 220.

See Dana's Wheaton, 439, note 218, for details as to Miranda's expedition. See, also, infra, § 404.

"What have been called expeditious organized within our limits for foreign service have been only the departure of unassociated individuals. Such a departure, though several may go at the same time, constitutes no infringement of our neutrality laws, no violation of neutral obligations, and furnishes no ground for the arraignment of this Government by any foreign power."

Mr. Marcy, Sec. of State, to Mr. Escalante, May 8, 1856. MSS. Notes, Spain.

"While any citizen of the United States is at liberty, under municipal and international law, to expatriate himself unarmed and to engage individually when abroad in any foreign service that he may choose, yet on the other hand the laws of the United States and the law of nations, as they are understood by us, forbid the Government from authorizing or permitting the enlistment or organization on American ground, or the departure from our territory, of armed military forces to carry on hostilities against any foreign state, except in a war against that state duly declared by Congress.

"The Prince Maximilian is either a principal or a subordinate belligerent in Mexico. The treaty which has been made between Austria and that belligerent by which the former authorizes the organization within the Austrian dominions of two thousand or more volunteers, manifestly to be engaged in war against the Republic of Mexico, is deemed by this Government inconsistent with the principle of neutrality and an engagement with Maximilian in his invasion of that Republic." Mr. Seward, Sec. of State, to Mr. Motley, Apr. 30, 1866. MSS. Inst., Austria. A mere preparation or plan of violation of neutrality, without overt acts, does not make the party amenable under section 6 of the neutrality act of 1818 (Rev. Stat., § 5286). If the means provided were procured to be used on the occurrence of a future contingent event, no liability is incurred under the statute. If, also, the intention is that the means provided shall only be used at a time and under circumstances when they could be used without a violation of law, no criminality attaches to the act.

U. S. v. Lumsden, 1 Bond, 5.

(3) BOUND TO RESTRAIN FITTING OUT OF AND SAILING OF ARMED CRUISERS OF

BELLIGERENT.

§ 396.

"The practice of commissioning, equipping, and manning vessels in our ports to cruise on any of the belligerent parties, is equally and entirely disapproved, and the Government will take effectual measures to prevent a repetition of it."

Mr. Jefferson, Sec. of State, to the minister of Great Britain, May 15, 1793,
MSS. Notes, For. Leg. 3 Jeff. Works, 105.

"Under the second point of view it appears to me wrong on the part of the United States (where not constrained by treaties) to permit one party in the present war to do what cannot be permitted to the other. We cannot permit the enemies of France to fit out privateers in our ports by the 22d article of our treaty. We ought not, therefore, to permit France to do it, the treaty leaving us free to refuse, and the refusal being necessary to preserve a fair neutrality. Yet, considering that the present is the first case which has arisen; that it has been in the first moment of the war, in one of the most distant ports of the United States, and before measures could be taken by the Government to meet all the cases which may flow from the infaut state of our Government and novelty of our position, it ought to be placed by Great Britain among the accidents of loss to which a nation is exposed in a state of war, and by no means as a premeditated wrong on the part of the Government. In the last light it cannot be taken, because the act from which it results placed the United States with the offended, and not the offending, party. Her minister has seen that there could have been on our part neither permission nor connivance. A very moderate apology, then, from the United States ought to satisfy Great Britain." Opinion of Mr. Jefferson, Sec. of State, on the restitution by the United States of prizes taken by French privateers fitted out in Charleston, May 15, 1793. 2 Randall's Life of Jefferson, 137.

"The President, after mature consideration and deliberation, was (in the case of Citoyen Genet) of opinion that the arming and equipping of vessels in the ports of the United States to cruise against nations with whom they are at peace was incompatible with the terri torial sovereignty of the United States, and makes them instrumental to the annoyance of those nations, and thereby tends to compromit their peace."

Mr. Jefferson Sec. of State, to Mr. Genet, June 5, 1793; affirmed by Mr. Randolph, Sec. of State, in letter to Mr. Fauchet, May 29, 1795. MSS. Notes, For. Leg. 1 Am. St. Pap. (For. Rel.), 150. Genet's answer, ibid., 151.

"As it was apprehended by the President of the United States that attempts might be made by persons within the United States to arm and equip vessels for the purpose of cruising against some of the powers at this time engaged in war, whereby the peace of the United States might be committed, the governors of the several States were desired to be on the watch against such enterprises, and to seize such vessels found within the jurisdiction of their States."

Mr. Jefferson, Sec. of State, to U. S. district attorney for N. Y., June 12, 1793.
MSS. Dom. Let.

In Mr. Jefferson's letter of June 17, 1793, to Mr. Genet, he stated that it being reported to the President that an armed French cruiser was fitting out, arming, and manning in the port of New York, for the