will be used, and are intended to be used, for warlike purposes against a friendly state. But this fact in itself is not sufficient to condemn the transaction. It is not the purpose of the law to prohibit the shipping of arms and materials of war when the parties making the shipment are engaged only in a commercial venture. So far as such shipments are contrary to the interests of other states, they will be subject to the risk of capture and confiscation as contraband, or to seizure when landed in the port of their destination. But it is necessary that the transportation of the arms be free from all features of a military character, and that the persons supplying or carrying them shall not in any way be parties to a conspiracy against another government, or have any intention of directly using the arms in a hostile way.20 Furthermore, there must be no intention to turn these munitions over to those having such hostilities in view, nor a purpose that men shall be added in the course of the transportation so as to render them capable of an unlawful use. This intention changes at once the commercial character of the act, and carries with it the liability for a violation of the law. In the absence of the hostile intent the same vessel may transport arms and men-it may even carry a cargo of arms and a military expedition, and the unlawful character of the latter will not affect the lawful transportation of the arms. But the absence of hostile designs is indispensable.21

It is not forbidden the citizens of one country to join the armed forces of another. The rule applies alike to regular forces and to revolutionary or insurrectionary armies. It is, therefore, not a crime against the municipal law to leave the country with an intention so to enlist. For this purpose, citizens or aliens may leave the country in any way they see fit, provided only that they are unarmed and have no intention of combining for hostile attacks or aggressions before reaching their destination. The sovereign of those so enlisting assumes no responsibility for their action.22 It is true, an intention to enlist involves a purpose ultimately 20 U. S. v. Pena, 69 Fed. 983; U. S. v. Nunez, 82 Fed. 599; U. S. v. O'Brien, 75 Fed. 900; 13 Op. At. Gen. 541.

21 U. S. v. Rand, 17 Fed. 142; U. S. v. Murphy, 84 Fed. 609; U. S. v. Hart, 78 Fed. 868; U. S. v. The Mary N. Hogan, 18 Fed. 528; U. S. v. Two Hundred and Fourteen Boxes of Arms, 20 Fed. 50; U. S. v. The Conserva, 38 Fed. 431; 21 Op. At. Gen. 267, 271.

22 U. S. v. Pena, 69 Fed. 983; U. S. v. O'Brien, 75 Fed. 900; Chacon v. Eightynine Bales of Cochineal, 1 Brock, 478 (Fed. Cas. 2568).

to take part in the war, but the hostile action there contemplated will necessarily originate and be completed entirely beyond the jurisdiction of the state from which the person came. An intention, however, to use force to reach the army in which enlistment is to be made, or to do any forcible act before joining the belligerent army, is sufficient to render the proceeding unlawful. For the means of doing the forcible acts will have been secured within the bounds of the friendly state, and for even these slight offenses it must be held responsible. 23

The presence of large bodies of men who intend to enlist for a foreign war is not substantial evidence of the existence of an unlawful enterprise. They may even be associated and intend to enlist in a body; but if they are unarmed and unprepared for military action, they are incapable of such direct injury to a foreign state as calls for any intervention for its protection.24 It is no offense to transport companies of this sort, nor to carry arms with them intended for use in the same war or even by these same men." 25 Where men and arms had both been landed in a foreign country by a ship sailing out of the United States, and it was proven that the men afterwards handled and carried the arms, the court instructed the jury that the evidence was not absolutely conclusive of a military expedition, it being possible that the men might intend to act merely as individuals and simply as porters of the arms. In other words, in the absence of the hostile intent, the shipment of men with arms is not contrary to law. 26

The above illustrations of the applications of the rule are concerned only with the question of the existence of the requisite intention. But, granted its existence, it is yet possible that circumstances may exist to nullify its effect. The intent may be not absolute; it may be dependent on contingencies which remove its unlawful character. The contingency, however, must be one which forms a condition precedent to the intent itself. If preparations have been made for hostilities, to be used only at a time and under circumstances when their use would be lawful, there is no occasion for interference by the government. Thus there is 23 U. S. v. Hart, 74 Fed. 724.

24 U. S. v. Pena, 69 Fed. 983; MS. Notes to Spain, VII, 79 (Moore's Digest, VII, 927).

25 13 Op. At. Gen. 541.

26 U. S. v. O'Brien, 75 Fed. 900. See also U. S. v. Hart, 78 Fed. 868.

nothing unlawful in the intent or the preparations if the means provided are to be used only on the occurrence of a war which would render the undertaking legitimate.27 The occurrence of the war is an indispensable element of the plan; it is the condition on which alone the expedition is to be carried out.

On the other hand, a condition precedent only to the undertaking itself is not sufficient. To have set on foot an expedition dependent alone on securing ships for transportation is unlawful, for the condition is one which may simply operate to defeat the enterprise, while it in no way modifies the nature of its purpose. It would be no defense to the offenders to show their expedition to have been dependent on the removal of certain difficulties in the way.

Finally, a condition subsequent to the intent will not legitimize action otherwise illegal. A declaration of war creates a situation in which expeditions are not prohibited. But the state of war offers no defense to one whose conduct had not been contingent on its occurrence. A citizen cannot with impunity anticipate his government's action in declaring war unless the prosecution of his enterprise depends upon its taking place. 28

2. THE ORGANIZATION OF THE EXPEDITION

The hostile purpose of the individual is to be accomplished by means of an expedition. In the word expedition itself there is implied the combined action of a number of individuals. To this extent, the term is expressive of the magnitude of the undertaking the law requires to be prevented. No definite number of men may be specified as necessary to the formation of an expedition, but it cannot be constituted by one or two men no matter what their intention or how disturbing their conduct. Something more is requisite, however, than a mere aggregation of persons. The common purpose which all must have in mind necessitates their association and organization for the accomplishment of that purpose. The hostile intent is something more than unanimity of sentiment or the incidental agreement of the members in their personal "U. S. v. Lumsden, 1 Bond, 5 (Fed. Cas. 15641).

U. S. v. Burr, Coomb's Trial of Aaron Burr (Fed. Cas. 14694a). "U. S. v. Hart, 74 Fed. 724.

intention. It is a positive and aggressive purpose on the part of the expedition as a whole. Consequently, the intention will not be found in the absence of an express or tacit agreement to act together. There will need be at least that mutual understanding of aims and purposes which will make possible effective action. To this end the expedition must be organized and prepared for the attainment of its object.

The degree of organization and the means and methods to be employed, as the number of individuals, are variable factors. Some degree of organization is certainly indispensable. It is essential to that unity of action without which the term expedition would be a misnomer. But it is of very little legal importance that there be complete or perfect organization.30 Defects which would render the success of the enterprise uncertain or improbable in no way affect the guilt of the parties to the undertaking. The means to be employed and the strength of the combination are of little consequence in determining the character of the offense or the culpability of the offenders. Nor can the actual danger to which another state may be subjected increase or diminish the obligation to prevent the unlawful attempt, or the ability of that state to defend itself relieve the obligated government.

The expedition is, of course, a military expedition; it must have something of a military character. "It must have been shown by competent proof that the design, the end, the aim, and the purpose was some military service, some attack or invasion of another people or country as a military force." 31 This much is necessary to the establishment of the fact of its hostile intention, and evidence to this effect is often to be found in the organization of the men into regiments, the presence of arms, or the purchase of military supplies.32 The designation of officers and leaders, and that concert and unity of action which implies their presence is valid and important evidence.33

Ultimately the military character must appear in the form of the expedition's organization. The courts of the United States have sometimes inclined to require that there be a combination intending to be30 Wiborg v. U. S., 163 U. S. 632; U. S. v. Hart, 78 Fed. 868.

31 U. S. v. O'Sullivan, Fed. Cas. 15975.

32 U. S. v. Ybanez, 53 Fed. 536.

33 U. S. v. Nunez, 82 Fed. 599; U. S. v. O'Brien, 75 Fed. 900; U. S. v. Ybanez, 53 Fed. 536.

come a military organization before reaching the scene of action.34 But it has not been deemed necessary that it possess all the characteristics of a military body at the start. Rather, there is no particular element of a military organization that has been considered necessary. The expedition need not be organized into regiments of infantry or cavalry, nor according to any system of military tactics.35 It is not necessary that the men be drilled or uniformed or prepared for efficient service. However much, therefore, the military organization may add to the completeness and efficiency of the expedition it is not essential to unlawful conduct.

It is immaterial whether the expedition is to act independently or in conjunction with belligerents or insurrectos in the country which they are to attack. For when organized for concerted action, and intending to engage in hostilities as a unit, it is to be considered as unlawful regardless of its subordination to a higher organization.36 The fact of participation in regular warfare has no direct bearing on the nature of the undertaking. There is the obligation to observe the laws of war under any circumstances. It follows, therefore, that the belligerency of the offended state is not a matter to be considered in dealing with the offenders.37 Once the organization of the expedition is so far accomplished that the action of its members loses the character of individual enlistment in a belligerent force, the coöperation or union of the party, subsequently, with an army in the country of their destination does not modify the character of the expedition as an unlawful enterprise.

The uncombined and unorganized elements of a hostile enterprise 4U. S. v. Hart, 74 Fed. 724.

"Wiborg v. U. S., 163 U. S. 632, 653–654; U. S. v. Murphy, 84 Fed. 609. 36 U. S. v. Hart, 78 Fed. 868.

"Wiborg v. U. S., 163 U. S. 632.

But when the protection of an enterprise is sought on the ground that it is approved by the government of the country to which it is directed, it may become necessary to determine the status of that government. Such an occasion arose in 1855, when a certain Mr. Fabens sought the aid of the government of this country to protect the "Kinney expedition" to Nicaragua. The professed object of the undertaking was colonization, but it had been denounced by the government of Nicaragua as an unlawful expedition. The authority of that government was questioned, but Mr. Marcy, Secretary of State, declined to act, since our minister had recognized it as holding the executive power of the state. 44 MS. Dom. Let. 173 (Moore's Digest, VII, 924).