thence to a foreign port for the purpose of being put on board another vessel, also purchased in England, with the knowledge that both ship and crew were to be used in a hostile demonstration against a friendly State, even though the defendant took no part in any overt act of war, and even though the vessel was not fully equipped for the expedition within the British dominions (t).

(ii) THE UNITED STATES.

THE UNITED STATES v. QUINCY.

[6 Peters, 445; Scott, 828 (1832).]

Case.] THE defendant in this case was charged with an offence under s. 3 of the Neutrality Act, 1818 (u). This provides that if any person shall, within the limits of the United States, fit out and arm or knowingly be concerned in the fitting out or arming of any ship, with intent that such ship shall be employed in the service of any foreign State, to cruise or commit hostilities against the subjects or property of any foreign State with which the United States are at peace, every person so offending shall be guilty of a misdemeanour and liable to fine and imprisonment. It appeared from the evidence that the defendant had superintended at Baltimore certain repairs or alterations of the Bolivia; that this vessel had subsequently left Baltimore, having an equipment beyond that of a merchant vessel, and with some warlike stores on board; that she had then proceeded under his command, the owner being also on board, to St. Thomas, where the owner, having procured the necessary funds, equipped her as a privateer; and that she then assumed the flag of the United States of La Plata, and thereafter cruised and committed hostilities against the subjects and property of the Emperor of Brazil, with whom the United States were then at peace. The defendant, on returning to the United States, was prosecuted on the charge aforesaid. On the trial of the case before the Circuit

(t) But counts under S. 8 for 2 Exch. 340, 348. equipping and despatching with intent failed. See also Burton v. Pinkerton,

(u) Subsequently s. 5283, Rev. Stat.

Court, and after the close of the evidence, each party prayed for particular instructions to the jury on certain points of law. As the opinions of the judges differed, the case was referred for decision on these points to the Supreme Court.

Judgment.] The judgment of the Supreme Court deals, first, with the question as to what would suffice to constitute a fitting out and arming of the vessel in the United States within the meaning of the statute. After referring to the contention put forward on behalf of the defendant that an acquittal should be directed, if it were found that the vessel on leaving Baltimore and on her arrival at St. Thomas was not fully armed or in a condition to commit hostilities, the Court ruled that either fitting out or arming was an offence; that it was not necessary that the vessel should then be armed or in a condition to commit hostilities; and that the offence might be committed even though her equipment was not complete when she left the United States and even though the cruise did not commence until the men were recruited and further equipment made at St. Thomas. Dealing, next, with the question of what would suffice to show an intent to employ the vessel in the service of a foreign State-and especially with the contention that an acquittal should be directed if it were found that when the vessel left the United States the owner had no fixed intention to employ her as a privateer, but only a wish so to do, the fulfilment of which depended on his obtaining the requisite funds-the Supreme Court ruled that, in order to establish liability, there must have been a fixed and present and not merely a contingent intention actually formed by the defendant with respect to the employment of the vessel before she left the United States; but that if he were found to have been knowingly concerned in the fitting out of the Bolivia within the United States, with such an intention as aforesaid, then the offence would not be purged merely because in the result that intent was frustrated by subsequent occurrences.

This case marks a distinction, always to be taken into account, between the national and the international law of neutrality. For although, on the first point, the liability both of the State in international law, and of the individual under that particular municipal

code, would appear to be governed by the same principle (x), yet, on the second point, it is clear that no liability would be incurred by a State from a mere design on the part of individuals subject to its jurisdiction, which was not in fact carried into execution (y).

Turning to the neutrality laws of the United States, we have already seen how the inadequacy of its common law powers in the situation in which the United States Government then found itself (z), led to the passing of the Neutrality Act of 1794, which, although in the first instance temporary, was made permanent in 1800. This Act was directed more especially against the enlistment of men and the issue of foreign commissions in United States territory, the augmentation there of the force of foreign warships, and the preparation there of hostile expeditions against a friendly State, in violation of United States neutrality; and conferred extensive powers on the executive Government with a view to their prevention. Although now replaced by other legislation, the passing of this Act constitutes an epoch in the history of neutrality, for the reason that it not only set a higher standard of neutral duty than had hitherto prevailed but virtually prepared the way for many of the now accepted rules of neutral duties in maritime war (a). It was subsequently replaced by the Neutrality Act, 1818 (b), which, like the British Foreign Enlistment Act, 1819, was rendered necessary by the circumstances of the wars which were then proceeding between Spain and Portugal and their respective American colonies. The more important provisions of this Act a knowledge of which is essential to a proper appreciation of the American decisions are in effect as follows (c): (1) It makes it a criminal offence for any citizen to accept and exercise within the jurisdiction of the United States a commission to serve any foreign prince, State, colony, district or people" in war, against a State with which the United States are at peace. (2) It makes it a criminal offence for any person within the like jurisdiction to enlist, or to procure any other person to enlist or to go abroad for the purpose of enlisting, in the service of any foreign prince, etc., on board any vessel of war (d). (3) It also makes it a criminal offence for any person within the limits of the United States (a) to fit out or aim, or to be knowingly concerned in fitting out or arming, any vessel with intent to employ her in the service of a foreign prince, etc., to commit hostilities against a friendly State (e), or to issue a commission to such vessel with the like intent; or (b) to increase or augment the force of any vessel of war of any foreign prince, etc., t war with a friendly State; or (c) to prepare any military expedition to proceed thence against a friendly State. (4) It also confers on the

(d) This is, however, subject to an exception where a person only transiently in the United States enlists on & vessel belonging to his own State, such vessel having been completely fitted out and commissioned before arrival in the United States: U. S. Comp. St. § 10182.

(e) I.e., any foreign prince, etc.

executive Government exceptional powers with respect to the detention, restitution, or expulsion of vessels, in cases of delinquency; requires the owners of armed vessels owned in whole or part by citizens, and leaving the United States, to give security against their illegal employment, and authorizes the detention of such vessels by the local authorities in cases of suspicion; and finally empowers the President to employ either the land or sea forces in order to execute its provisions. This Act, although in some respects less precise in its terminology than the corresponding British Act, deals, it will be seen, with much the same classes of topics. Like the latter Act, it applies to aid given to unrecognized insurgents against a Government in amity with that of the United States (f), but not to aid given to the parent State against a revolting community whose belligerency has not been recognized by the United States (g). In the United States, as in Great Britain, it is usual on the outbreak of war between foreign States to issue a Proclamation of Neutrality (h).

The United States neutrality laws have been the subject of a great variety of decisions, some of which have already been referred to (i). Amongst others the following are especially noteworthy: In the Santissima Trinidad, 7 Wheat. 283; Scott, 823, a vessel previously employed as a privateer had been refitted in the United States and sent by her owners under the American flag to Buenos Aires for sale as a commercial adventure; she was there sold to and subsequently commissioned as a vessel of war by the Buenos Aires Government, in which character, and after recruiting men in a United States port, she took part in the capture of certain Spanish property; this the Court was now asked to restore, as having been taken in violation of the local neutrality. In these circumstances it was held (1) that there was nothing, either in the Neutrality Act or in the law of nations, which precluded United States citizens from sending armed vessels as well as munitions of war to foreign ports for sale, this being in the nature of a sale of contraband, which no State was bound to prohibit; but (2) that inasmuch as there had been a subsequent illegal augmentation of force within United States territory (k), this must be regarded as vitiating all captures made during that cruise, with the result that the proceeds of such captures found within the jurisdiction must be restored (1). In the United States v. Trumbull, 48 Fed. Rep. 99;

(f) The Three Friends, 166 U. S. 1; Scott, 830.

(g) Opns. of U. S. A.-G. vol. xiii. 1869.

(h) For the terms of the proclamation issued on the 4th of Feb. 1904, on or in anticipation of the RussoJapanese War, see the Statutes at Large, 1903-1905, p. 2332.

(i) A summary of the judicial history of the subject down to 1866 will be found in Wheaton (Dana), n. 215; whilst the more important of the later cases will be found in Scott, and Atherley-Jones and Bellot, Commerce in War, 483-93 These Neutrality

Laws were re-enacted on the 4th of March, 1909 (U. S. Comp. St. §§ 10173-10182). Additional legislation was enacted by the Acts of the 7th of May and the 15th of June, 1917 (U. S. Comp. St. 1918; §§ 10174, 10182b-101821.

(k) In the shape of an enlistment of men, who, in default of proof, could not be presumed to be subjects of the State of the flag; supra, p. 508, n. (d).

(1) Scott, 823. See also U. S. v. The Meteor, Scott, 828. The bonds which are taken, under the neutrality laws, from armed vessels sailing from

Scott, 901, it appeared that the defendant, during the civil war in Chile, had come to the United States and there made extensive purchases of arms and munitions of war on behalf of the Congressional party, and that the Itata, a Chilean vessel, then in the service of the party, had been despatched from Chile to fetch these, and subsequently took delivery of them within the territorial waters of the United States from a small vessel on which they had been shipped for that purpose by the defendant. On these facts the defendant was subsequently indicted for a violation of the neutrality laws, it being charged, amongst other things, that he had been concerned in the illegal fitting out of an armed vessel" with intent" (m), as also in an illegal augmentation of force (n), and in the preparation of a hostile expedition (o). It was, however, held in effect (p) (1) that the mere sending of a ship from Chile to the United States to take on board arms and ammunition purchased in that country and carry them back to Chile, did not constitute either a "fitting out and arming," or a "furnishing" of the vessel, or a "setting on foot of any military expedition," within the meaning of the sections in question, there being no law forbidding any person or Government from purchasing arms from the citizens of the United States and shipping them at the risk of the purchaser (q); and (2) that the fact that much secrecy and deception had been practised by those on board the Itata, and that she had finally quitted San Diego in violation of other provisions of the domestic law (r), did not suffice to bring the case within the purview of the statute under which the charge was laid (s). These occurrences also gave rise to a further controversy between the United States and Chile. On visiting San Diego, the Itata had been arrested on suspicion by the United States authorities, but had, whilst in the custody of the marshal of the Court and with that officer on board, made her escape, and, after landing him and shipping the arms and ammunition already referred to, had proceeded on her voyage to Chile. Thereupon she was pursued and arrested on the high seas by a United States warship, but eventually released. A claim for damages was subsequently preferred by the owners of the Itata against the United States Government on the ground that the seizure of the vessel outside the United States jurisdiction was illegal. This was referred for determination to a Commission appointed under the United States and Chilean Claims Convention of 1892, with the result that an award was ultimately made in favour of the claimants (t).

GENERAL NOTES.-Relation of the National to the International Law of Neutrality. As between States, the duties of neutrality, in strictness,

the United States and owned by
United States citizens, are subject to
the condition that the vessels shall
not be employed "by such owners
to cruise or commit hostilities against
a friendly Power.

(m) Under s. 5283, now § 10175.
(n) Under s. 5285, now § 10176.
(0) Under s. 5286, now § 10177.

(p) Both in the District and Circuit Courts.

(q) See Opinions of U. S. Att.-Gen. xi. 452.

(r) Infra.

(s) Scott, 901.

(t) See Moore, Int. Arb. iii. 3067; and also Moore, Digest, vii. 422.