tions are not clearly distinguished from other unlawful operations. No doubt an expedition may be an augmentation of the fighting power of a belligerent, and a hostile enterprise may make neutral territory its base of operations, if by base is meant place of departure. The term, "hostile expedition," itself is made to describe very different things. In one case the regularly organized forces of a belligerent are considered as an expedition; in another, the term refers to vessels built in neutral ports for the commissioned service of a belligerent; 13 and sometimes it is used to refer to unauthorized combinations of individuals for warlike purposes. A more restricted use of these terms will enable us to distinguish expeditions from other well-defined classes of offenses.

A hostile expedition is a combination of individuals, subject to the jurisdiction of a particular state, for the purpose of conducting military operations against another state in its political capacity, the two states being at peace with each other. The idea here conveyed is meant to embrace action by citizens and by aliens, instigated by private persons or by foreign governments. It excludes action by individuals separately; it excludes non-military operations and attacks on private persons as such. Hostile expeditions will not be confused, therefore, with mere marauding invasions which are undertaken for the piratical ends of rapine and plunder. The concerted action of organized companies is clearly distinguishable also from the recruiting of individuals for the regular forces of a belligerent state. Every individual enlisted is, of course, an element of strength to the party that enlists him, but he is not a unit capable of immediate hostilities. The hostile expedition involves the preparation on friendly soil of a force capable of immediate and independent action against the state, and presumably able to defend itself. The individual recruit is so much material for warfare, but the expedition is itself a warring party.

In a similar way the fitting out and arming of ships of war and cruisers by belligerents in neutral waters is to be regarded as the addition of units to the fighting forces of the government that commissions them. It is an increase of equipment. But a hostile naval expedition exists only when the vessels are manned and prepared for independent par

13 See 1 Amer. St. Pap., For. Rel. 608; and Davis, Elements of International Law (3rd ed.), p. 404.

ticipation in the hostilities. Likewise the furnishing of supplies to belligerent fleets only indirectly injures another state,-no direct attack is involved.

The law requires the state to prevent the use of its territory for the establishment of stations of supply and communication, or as the base of attack against another state, but it would stretch the word expedition too far to include within its meaning the regular military and naval forces of a belligerent in the ordinary pursuit of their enemy.

Thus expanded, the idea of a hostile expedition is that of the necessary elements of a fighting force, combined into an effective unit, organized on friendly soil, designed for independent operations, and proceeding, not to union with belligerent armies or navies primarily, but to the attack of some friendly nation. Through other violations of the duties imposed by neutrality, a belligerent may receive the increase of men or equipment, he may have the privilege of a base for his operations, or the protection of a friendly asylum; but through an expedition, the belligerent acquires the assistance of a new party to the war. Sometimes there is only the indirect benefit of the attack on the enemy; in civil wars it frequently amounts to an alliance. To the offended state, on the other hand, the delinquency of the offender is more than partiality toward the enemy; it is a positive aggression against itself. It is a direct attack equally offensive in time of peace and time of war.

Hostile naval expeditions do not differ in their essential features from military expeditions. The distinction is of little legal consequence and of scarcely more practical importance. Frequently the two are found in combination. Completely organized naval expeditions are of rare occurrence because of the difficulties in fitting them out secretly, and because of the fact that hostilities on the part of lone vessels are comparatively ineffective when directed against the land or against fleets of warships. Naval expeditions have, therefore, usually taken the form of privateers. Especially in the early part of last century the frequency of their occurrence made them of great importance; but for the future they are hardly to be considered. With the passing of privateering, the opportunity for naval expeditions is largely removed. We shall, therefore, disregard the few exceptional considerations affecting them, and confine our discussion entirely to military enterprises.

CHAPTER II. UNLAWFUL DISTINGUISHED FROM LAWFUL CONDUCT OF INDIVIDUALS

The character of the act of the citizen or subject who makes war upon a country which is at peace with his own is such that its unlawful nature cannot be mistaken. But before his unlawful purpose can be realized, he will have passed beyond the jurisdiction of his sovereign and beyond its power to restrain him or control his conduct. Consequently, if the sovereign is to prevent his hostile action, it will need to restrain him while his attack is still in preparation. It is for this reason that the government finds itself under obligation to perform its duty of prevention while expeditions are still in their incipient stages. To do this effectively, it is compelled to regard not only the internationally offensive stages of these warlike undertakings as unlawful, but also all those steps in preparation which are taken within its jurisdiction. Viewed from the standpoint of the state charged with responsibility, the whole undertaking from beginning to end must be regarded as contrary to law. The statutes of the United States impose penalties on all who "begin or set on foot or provide or prepare the means for any military expedition or enterprise" which is to be carried on from this country. 14

1. THE HOSTILE INTENT

Naturally it is impossible to define with precision, even in the municipal law, the specific acts which are to be prohibited. The acts done within jurisdiction will be only part of a plan, the preliminaries to the real offense which is to be committed later. These acts in themselves, no doubt, would ordinarily be considered entirely innocent; they become culpable only because of their connection with other inherently objectionable acts. So it happens that the same things, entirely innocent in the one case, may, in another, result in a marauding raid or in a military expedition; and the preparations themselves are not sufficient to determine the innocence or guilt of the parties making them.

In distinguishing military from non-military invasions (in Chapter I),

14 Act of March 4, 1909, sec. 13, "An Act to codify, revise, and amend the penal laws of the United States."

we employed the test of intent. In distinguishing now the conditions under which the same acts may be considered innocent, on the one hand, or guilty through connection with a military enterprise, on the other, we are compelled to resort to the same test. Obviously, it is the purpose toward which the conduct in question is directed that stamps it with an unlawful character. It is the design to invade another country and to attack its government that attaints these otherwise harmless acts. It is through the intent, the evidence of the probability of unlawful consequences, that the prohibited conduct is to be defined. The presence of all the elements of an expedition, or the inadvertent association of individuals capable of such hostilities, is not objectionable so long as there is no purpose to do an unlawful act. For the intent is requisite to a violation of the law. Said Chief Justice Marshall: "War may be levied without a battle, or the actual application of force to the object on which it is designed to act; (that) a body of men assembled for the purpose of war, and being in a posture of war, do levy war. . . . But the intention is an indispensable ingredient." 15

The intention contemplated by the law is an individual intent. No person is held to answer for the crimes of the expedition unless his own conduct and intentions are unlawful. So the person who voluntarily joins an expedition is not guilty unless he is aware of its unlawful nature; and the individual who takes part in the undertaking unwillingly does not violate the law, however unlawful the expedition as a whole may be. Certain American citizens who had taken part in the expedition led by Miranda against South America were captured and imprisoned by Spanish authorities. They sought the interposition of the United States for the purpose of securing their release, and alleged that they had unwillingly accompanied the expedition, having been deceived by false statements. When they became aware of Miranda's purpose, they had been forcibly prevented from leaving his service. The desired interposition was granted, the grounds alleged being considered sufficient to free the parties from all culpability.16

When it is sought to punish individuals for their part in expeditions already carried out, the evidence of events subsequent to their departure

15 U. S. v. Burr, Coomb's Trial of Aaron Burr, 377 (Fed. Cas. 14694a).

16 Lloyd's Trial of Wm. S. Smith and Samuel G. Ogden (Moore's Digest, VII, 917).

from the country is usually available to determine their hostile intention and to fix the resulting guilt. Such testimony is then always to be considered.17 It will not always be necessary to establish the immediate consummation of the purpose of the undertaking. The temporary deviation of the expedition from its actual purpose, or an attempt to evade the law by the pursuit of a circuitous route or by transshipping, are sometimes evidence of unlawful intentions rather than lawful. The guilt of the offenders is not diminished by such facts as these. The real proof of the hostile intention is to be found in the ultimate result of the enterprise and the final conduct of the parties thereto.18

But when the participants are prosecuted for their part in the preparation of an expedition not yet carried out, there is seldom sufficient testimonial evidence to show the intent. The necessity for secrecy is present at all stages of these proceedings. The conspirators must guard against the frustration of their attempt by the authorities of both countries concerned. Consequently the government must depend largely on the circumstantial evidences of the unlawful character of the enterprise. The circumstances which are material to this point will vary greatly in different instances. Secrecy and mystery in the arrangements and in the departure of suspected persons and arms is ordinarily an evidence of criminality to be considered, but, of course is not conclusive.19 It may happen that purely commercial undertakings will require secrecy to prevent the confiscation of contraband goods by a belligerent. Thus the difficulty of laying down fixed rules is apparent. The evidence of hostile intent is to be found in the conformity of an undertaking in question to the ordinary and requisite characteristics of such enterprises. But more definite rules are impossible.

The application of the test of intent to certain somewhat questionable transactions will serve to eliminate them from the category of unlawful conduct. The shipment of arms and munitions of war has been of frequent occurrence. When destined to a belligerent country or to an insurrectionary faction in some state, it is very certain that the arms.

17 U. S. v. Nunez, 82 Fed. 599, 609.

18 U. S. v. Smith, Fed. Cas. 16342a. Also U. S. v. Rand, 17 Fed. 142.

19 U. S. v. Nunez, 82 Fed. 599; also U. S. v. Hart, 78 Fed. 868; and U. S. v. Pena, 69 Fed. 983.