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ordinary affairs of life and intercourse, subject, of course, to military necessities should their property be situated within the zone of active operations. The Spanish authorities are represented to be using strenuous endeavors to prevent the class of spoliations which the writers apprehend and notification of any apprehended danger from the insurgents would probably be followed by the adoption of special safeguards by the authorities. In the event, however, of injury, a claim would necessarily have to be founded upon averment and reasonable proof that the responsible officers of the Spanish Government, being in a position to prevent such injury, have failed to use due diligence to do so.'

"As is implied by the passage above quoted, foreigners at the scene of insurrection necessarily look for protection, so far as may be required, to the titular sovereign, and they are also subject to its authority. Assuming the facts in regard to the action of the manager of the Soledad plantation to be as reported, he seems, so far at least as they relate to his refusal of protection, to have confounded his duty to abstain from participating in the conflict, and his exemption from being required to participate in it, with the doctrine of governmental neutrality as between recognized belligerents, and to have assumed that the insurgents in Cuba are to be treated by foreigners as possessing equal authority and responsibility with the Government. "These observations are made merely for your information, and it is not doubted that the course of your manager, so far as it may be found to have involved unwarrantable assumptions, was taken upon his own responsibility and was unauthorized. The Department has instructed the consulate-general at Havana in this sense."

Mr. Adee, Act. Sec. of State, to Mr. Atkins, Aug. 31, 1905, 204 MS. Dom.
Let. 385.

The agents in Venezuela of an American line of steamers, plying between New York and Venezuelan ports and carrying the mails, having on several occasions been applied to by one or the other of the factions contending for power in that country for the use of their vessels for special service out of their regular itinerary, requested the advice of Mr. Scruggs, then United States minister at Caracas. Mr. Scruggs replied: "The ships being registered Ameri

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can vessels, and being besides under contract with the United States Government for carrying the mails, can not be chartered or otherwise used by anyone of the factions now contending for power in Venezuela without manifest prejudice to their neutral character and to the interests of the United States. It is hoped, therefore, that you will courteously but firmly refuse to allow them to be so used." In acknowledging receipt of the correspondence, the Department of State said: "The Department regards your letter as,

under the circumstances, discreet. Avoidance of all interference in local conflicts is very desirable on the part of a mail line, although the suggested service to the titular or de facto authorities might not in fact infringe any statute of the United States."

Mr. Foster, Sec. of State, to Mr. Scruggs, Sept. 30, 1892, For. Rel. 1892, 627-628, enclosing a letter from the Secretary of the Treasury of Sept. 23, 1892, expressing the opinion, in a case lately before him, that the chartering of an American steamer in Honduras by the President of that Republic for use there against rebels, and the granting her for the time being permission to fly the Honduranean flag, did not subject the vessel, or her owners or master, to any penalty or disability under the statutes of the United States. See, also, as to the case in Honduras, For. Rel. 1893, 149-152, and supra, § 328, II. 1075.

On July 14, 1894, Commander Charles O'Neil, U. S. N., during a revolution in the Mosquito Reserve, issued a notice to the owners. agents, and captains of vessels flying the American flag in Nicara guan waters, cautioning them not to take part in the affairs of either faction by permitting vessels under their charge "to engage in any military operations" by carrying bodies of armed men or military supplies, knowing them to be such, for either party, or by assisting in any hostile demonstration. Should either party attempt to coerce them to do so, or interfere with them in the peaceful pursuit of their legitimate business they were advised to protest, to exhibit the notice, and to communicate the facts to him.

For. Rel. 1894, Appendix, I. 321–322.

Feb. 3, 1899, on the outbreak of the insurrection under Gen. Reyes. Mr. Clancy, United States consular agent at Bluefields, issued a notice warning citizens of the United States not to take part in the political disturbances and requesting them to observe a strict neutrality. The uprising appears, however, to have been participated in by a number of aliens, including Americans, Englishmen, Cubans, Norwegians, and other nationalities. Subsequently, General Reuling, of the Nicaraguan army, on demanding the surrender of the town, with a view to avoid bloodshed and destruction of property, agreed with the commanders of an American and a British man-of-war, and with the foreign consuls, to allow the foreigners who were involved in the uprising to leave the country, and furnished them with passports with which they departed for New Orleans. This arrangement appears to have facilitated the prompt surrender of the town. and the satisfactory termination of the revolution.

For. Rel. 1899, 551, 554-557, 582-584.

It is a misdemeanor at common law to plot and combine to disturb the peace and tranquillity of the United States and to draw them into a war with a foreign nation.

Lee, At. Gen., 1797, 1 Op. 75,

Rulings, contra, are noted in Wharton's Crim. Law, § 253.

Appeal from the admiralty of the State of Massachusetts acquitting the brig Erstern and her cargo. It appeared that upon the conquest of Dominica by the French a capitulation was entered into by which commercial intercourse between Great Britain and that island was prohibited. Under these circumstances, one Mason, a British subject, sought to establish at Ostend a plan by which the commerce of Great Britain with Dominica was to be kept up. Accordingly certain imperial subjects at Ostend purchased at London the brig Erstern, on which Mason put a cargo of British merchandise, the property of British subjects. The brig cleared out from London for Ostend, and, on her arrival there, the imperial subjects in ques tion supplied her with false and colorable papers, by which they assumed the ownership of the cargo. The brig then sailed for Dominica with the cargo taken on board at London. It was held that this transaction was a fraudulent combination, and that the brig and cargo should be condemned, even though, by the ordinances of Congress, the cargo, if it were the property of the enemy, would not have been good prize if on board of a really neutral ship. The court seems to have proceeded on the idea of the "fraudulent combination" of imperial subjects with British subjects to evade the prohibition of the capitulation. The court said that, if the brig had been employed in "fair commerce, such as was consistent with the rights of neutrality, her cargo, though the property of an enemy, could not be prize," unless indeed it had been contraband, which it was not. The court said that the subjects of a neutral nation could not consistently with neutrality "combine" with British subjects to wrest out of the hands of the United States and France, as allies, the advantages they had acquired from Great Britain by the rights of war, since this would be "taking a decided part with the enemy." Darby v. Brig Erstern, Federal Court of Appeals (1782), 2 Dall. 34.

"The forms of unneutral service which have been hitherto most common are: 1. Carriage of enemy dispatches or correspondence. 2. Carriage of enemy persons. 3. Enemy transport service. In recent wars, auxiliary coal, repair, supply, cable ships and the like have become of great value. Pilotage by a neutral of an enemy vessel, the repetition of signals for the benefit of the enemy by any means, and many other acts, the number of which will continually increase with the development of means of com

munication and transmission, must be provided against by something
beyond the laws of contraband and of blockade. Such acts are in the
nature of unneutral service.
Their nature is hostile, because
such service should primarily be performed by belligerent agents and
agencies. The neutral agent in undertaking the act identifies him-
self with the belligerent to an extent which makes him liable to the
treatment accorded to the belligerent. He is therefore liable to cap-
ture as an enemy, and his goods are liable to the treatment accorded
to the enemy under similar conditions. The agent may be made at
prisoner of war, and the agency may be seized, confiscated, or, in
certain instances, so treated as to render it incapable of further ren-
dering unneutral service."

George Grafton Wilson, Proceedings of the American Political Science
Association, Chicago, Dec. 28-30, 1904.

II. STANDARD OF OBLIGATION.

$1291.

The measure of a neutral's obligations is to be found in the rules of international law, and it can not shelter itself by the allegation that its own legislation imposes a laxer standard on its subjects.

Papers relating to the Treaty of Washington, IV. 12; Moore, Int. Arbitrations, IV. 4101 et seq.

See, also, 103 North Am. Rev. (1866), 493.

"The duties of neutrality by the law of nations can not be either expanded or contracted by national legislation. The United States, for instance, may, in excessive caution, require from its citizens duties more stringent than those imposed by the law of nations; but this, while it may make them penally liable in their own land, does not by itself make them or their Government extraterritorially liable for this action in disobeying such local legislation. On the other hand, a government can not diminish its liability for breach of neutrality by fixing a low statutory standard.”

Mr. Bayard, Sec. of State, to Mr. Smithers, chargé in China, June 1, 1885, For. Rel. 1885, 172.

"Breaches of neutrality may be viewed by this Government in two aspects: First, in relation to our particular statutes; and, secondly, in respect of the general principles of international law. Our own statutes bind only our own Government and citizens. If they impose on us a larger duty than is imposed on us by international law, they do not correspondingly enlarge our duties to foreign nations, nor do they abridge our duties if they establish for our municipal regulation a standard less stringent than that established by international law." (Mr. Bayard, Sec. of State, to Mr. Hall, Feb. 6, 1886, For. Rel. 1886.

§§ 1292, 1293.]

ACCEPTANCE OF COMMISSION; ENLISTMENTS.

879

The Hague Conference adopted the following resolution: The conference expresses the wish that the question of the rights and duties of neutrals should be considered at another conference. The American delegates voted for this resolution, but a few powers abstained from voting.

For. Rel. 1899, 513, 520.

III. PROHIBITED ACTS.

1. ACCEPTANCE OF COMMISSION,

$ 1292.

"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 deemed guilty of a high misdemeanor, and shall be fined not more than two thousand dollars and imprisoned not more than three years."

Sec. 5281, Revised Statutes.

One Isaac Williams was convicted in a United States court in Connecticut, in 1797, and fined and imprisoned for a violation of the neutrality laws in accepting in the United States a French commission and under the authority thereof committing acts of hostility against Great Britain.

Murray . Schooner Charming Betsy, 2 Cranch, 64, 82, note, summarizing the case as reported in the National Magazine, No. 3, p. 254.

2. ENLISTMENTS.

$1293.

"Every person who, 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 deemed guilty of high misdemeanor, and shall be fined not more than one thousand dollars, and imprisoned not more than three years."

Sec. 5282, Revised Statutes.

"The provisions of this Title [R. S., §§ 5281-5291] shall not be construed to extend to any subject or citizen of any foreign prince,

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