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PERIODICAL LITERATURE OF INTERNATIONAL Law. Kathryn Sellers 183, 420,
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THE LAW OF HOSTILE MILITARY EXPEDITIONS AS
APPLIED BY THE UNITED STATES
CHAPTER I. INTRODUCTION By the time of the establishment of the American Government the practice of the nations with regard to their mutual obligations had begun to resolve itself into fairly well-defined principles. (Among these was one to the effect that one state must prevent the use of its territory and resources for hostile attacks upon its neighbors with which it is at peace.) In the beginning this rule was evolved from the relations of neutrality; for the more pressing needs of the time of war tended to crystallize usage applying to it, while other practice was still incoherent. But obviously the law thus defined was only a phase of the general duty of a state to prevent injurious and offensive acts against friendly countries. The obligation is based upon the complete and exclusive control which the sovereign is presumed to exercise over its subject persons and territory. The authority of the sovereign exists alike in time of war and time of peace; and the requirement of the law extends as well to normal relations as to the exceptional conditions of neutrality.
1. RELATION OF THE AMERICAN PRACTICE TO THE SUBJECT The United States was early called upon to apply this principle in both its phases. As a neutral during the French revolutionary wars it applied it the more strictly because of its desire to disengage itself from the embroilments of Europe. But at the same time, the unsettled condition of the neighboring Spanish colonies, and the uncertainties of international politics affecting the American continents, tempted the American frontiersmen to take the destinies of these lands into their own hands, and directed the attention of the government to this newer phase of its duty. In 1792, President Washington, in his annual message to Congress, particularly recommended to its consideration “the means of
preventing those aggressions by our citizens on the territory of other nations, . . . which, furnishing a just subject of complaint, might endanger our peace with them.” 1
Both phases of the law were soon put into the form of a statute, but no violation of its provisions has been a more continuous source of difficulty and annoyance than the fitting out of hostile military expeditions. The annexation of Louisiana, Texas, Canada, and Cuba have been inviting prospects, and only recently has difficulty from this source appeared to cease. The independence of various colonies furnished the motive for the filibusters: the revolutionary wars in South and Central America, and the patriotic movements in Texas and Cuba have been seconded by American adventurers. Often, however, less generous impulses have inspired the filibusters, and love of adventure and excitement, and the chance of personal gain, have been the real or sole motives back of the unlawful enterprises.
Very recently (1911), the United States has been compelled to concentrate an army of twenty thousand men on the Mexican border for the purpose of enforcing the neutrality laws and to prevent the crossing of hostile parties into Mexico. Apparently the story of filibustering is not a closed chapter.
The number and variety of the causes present to induce undertakings of this sort have given America numerous occasions for the application of the principle of international law. The number of these expeditions renders the practice of the United States especially valuable in this field of the law. The matter is particularly American, so much so that scant attention has been given the subject in most text books. Filibusters are rather peculiar to America. The conditions which have offered the occasion for their occurrence have existed chiefly in the western hemisphere. The sparseness of population, the backwardness of many small independent states in economic development, intolerable or inefficient governments in those countries, a restless and migratory population in
1 Richardson, Messages and Papers of the Presidents, I, 125, 128. See Washington's Annual Address, 3 Dec. 1793, American State Papers, For. Rel. I, 21.
? “The American troops have been sent to form a solid military wall along the RioGrande to stop filibustering and to see that there is no further smuggling of arms and men across the international boundary.” Press correspondent with President Taft, Augusta, Ga., March 8, 1911. See Review of Reviews, Vol. 43, p. 406 (April, 1911).
the United States,—these have combined to create situations favorable to depredations of all descriptions. Perhaps the protected position of the Latin-American governments has prevented such forcible reform as would have effectually altered such a situation. Europe has had occasional expeditions, it is true, but they have been directed for the most part against western countries. Whatever the reasons, these peace-time aggressions on the part of individuals have been of less concern outside of America. And the practice of the United States is the more valuable because it has been most often on the defensive, and has developed a standard of obligation to be enforced almost entirely against itself.
The principle of international law is, of course, not regarded as dependent on the will of any particular state: some further authorization is necessary. This is well recognized by the United States in the fulfillment of its obligation with regard to hostile expeditions. The American courts, in so far as they are not bound by statute, apply the law derived from the practice of all nations and are not restricted to purely American authorities. But in the absence of clear and definite rules developed by long custom in the world at large, we are compelled to resort to the evidence of the most extensive precedents. In one sense the practice of the United States is to be regarded as a source of the principle of international law. It is that most extensive practice wherein the best evidence of the law is likely to be found. Furthermore, since this is a country which has had much to do with expeditions, the consensus of international opinion is incomplete without large regard for the American attitude toward the subject. The principles with regard to the present subject have come to be recognized largely through their application by the United States, and the working out of their details have here received the fullest attention.
The municipal law of any country may be framed with the intention 3“The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. ... The decisions of the courts of every country, so far as they are founded upon a law common to every country, are received not as authority, but with respect. The decisions of every country show how the law of nations, in a given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this." Chief Justice Marshall, in Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 198. See also the Paquete Habana, 175 U. S. 677, 700, and Respublica v. De Longchamps, 1 Dallas, 111.
of facilitating or improving the execution of international law, and may, in such cases, exceed the strict requirements of the latter. On the other hand, the state may prefer to make no provision at all in its statutes for the fulfillment of international duties. It may prefer to meet its obligations by other methods. Its municipal law will then afford us no evidence even of that state's conception of its duty. The courts, also, having before them such statutes to be applied, may neglect the international obligation out of which the statute arises. For these reasons national laws and practice based on them need to be carefully handled in discussions of international law. But the conception of the law entertained by any state cannot otherwise be determined than by the sum of its application of the law. The legislation of the United States on the subject of expeditions, and the opinions of its executive and diplomatic officers, have been expressly declaratory of an international duty. International complications and dangers demanded the enactment of the neutrality acts. They were passed in response to an international obligation. In the execution of the statutes the government has regarded the foreign states in whose behalf the execution was undertaken. The courts in expounding the statutes have attended to their purpose and to the international law they were intended to enforce. Whether or not this American practice conforms exactly to the requirements of international law, it is the evidence of America's idea of that law. It is that idea we are to set forth.
2. RELATION OF THE SUBJECT TO OTHER BRANCHES OF
INTERNATIONAL LAW Despite the fact that expeditions have occurred least frequently in time of recognized warfare, such discussion as there has been of them has been offered under the title of neutrality. This is unfortunate, because it implies the basing of the law entirely on the duty of impartiality, and the full significance of the principle of non-interference is not
* Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191. 5 S. Ex. Doc. 112, 41 Cong. 2 Sess. p. 3.
See Ross v. Rittenhouse, 2 Dallas, 160, 162; Murray v. Schooner Charming Betsey, 2 Cranch, 64, 118; Talbot v. Seeman, 1 Cranch, 1; Chacon v. Eighty-nine Bales of Cochineal, 1 Brock, 478 (Fed. Cas. 2568).