are not regarded as in themselves unlawful. But they become so when so organized as to constitute an expedition; that is, whenever they are so combined that there exist the means of hostile action. The extent of the organization thus becomes the test of the existence of an expedition. When applied to the case of elements departing from the country as yet uncombined, their capability of proximate combination into an efficient unit will determine their character as an expedition.38

In general, the possibility of immediate or proximate employment for warlike purposes may be considered the measure of the organization and preparation which are necessary to such an undertaking as the state is under obligation to prohibit. The United States applied this test during the Franco-Prussian war, when several hundred Frenchmen embarked at New York for the purpose of joining the French army. The vessels in which they sailed carried also large quantities of arms and ammunition. The United States Government took the view that this could not be looked upon as a hostile undertaking, since the men were wholly unprepared for the use of the arms.39

It is not necessary, however, that all the elements to be combined should be present at the time of departure. Men or arms are sometimes added or secured in transit. The possibility that the one element when leaving may later be effectively combined with others for warlike action is sufficient to involve those concerned in a violation of the law.40 In 1895, the American ship Laurada, sailing from New York, stopped outside Sandy Hook and took on men and arms. The men drilled during the voyage and prepared for the use of the arms. In remanding the men for trial, the test of the capability of proximate combination was the decisive factor. "However legitimate it may have been to have taken aboard his ship either the men or their arms, or both, for transportation to the island of Cuba, as soon as it became apparent that it was an organized force, capable of proximate combination for offensive purposes, it took on a new character. . . the enterprise became henceforth essentially a military expedition." 41

38 U. S. v. Hughes, 70 Fed. 972, citing Hall, International Law, p. 609; see also Wiborg v. U. S., 163 U. S. 632, 653–654.

39 See Hall, International Law, p. 607.

40 U. S. v. Murphy, 84 Fed. 609; U. S. v. Nunez, 82 Fed. 599.

41 U. S. v. Hughes, 70 Fed. 972.

3. THE QUESTION OF JURISDICTION

It is only from the standpoint of the particular states affected that expeditions are considered unlawful. They are not of the nature of piracy, to be repressed by all states wherever found. But for every attempted hostile undertaking of this sort some state is charged in a measure with responsibility. Its responsibility is dependent on the fact of the connection of the expedition in some way with its territory, or the commission of some act within its jurisdiction over which it may be presumed to have had control. Therefore, in the view of that state, only those expeditions are unlawful which are carried on from its territory, or which have been prepared through the use of its resources and under the protection of its jurisdiction.

The extent of the action necessary to be taken within its jurisdiction in order that the government will take cognizance of the expedition as a violation of its law, or as an undertaking for which it must assume responsibility, is only so great as the exigencies of prevention demand. The inception of the conspiracy, and the formation of plans and organization may have occurred in some other country than that from which the expedition finally sets out. The individuals may have associated in a foreign country for the purpose of carrying on an expedition from this. But if they have made use of this territory, the government must take steps to thwart their purpose. In 1817, a number of foreigners enlisted or engaged in Holland to join the revolutionists in South America, and embarked for the United States with their military equipment, intending to obtain passage from this country to the scene of operations. They arrived under the command of a leader who exercised the authority of a commander during their stay at Philadelphia. He ordered them to a place of rendezvous, and drilled them. When they were about to depart, the boat in which they had taken passage was stopped by admiralty process, and the members of the expedition were held for trial. The court decided that in such cases the state is compelled to assume responsibility if the expedition is allowed to depart from its shores.42 It is possible, of course, that the other state, if found negligent in the matter, could also have been held responsible. But the liability

42 Ex parte Needham, 1 Pet. C. C. 487 (Fed. Cas. 10080).

of the United States would be in no wise diminished. It is under obligation to prevent the use of its territory and resources, whether by citizens or by aliens; and expeditions elsewhere organized cannot be allowed the privilege of a protected position within its jurisdiction for the furtherance of their enterprise.43

The actual contact of the members or elements of an expedition within the territory of the responsible state is not indispensable.44 It is easily possible that the unlawful organization may be otherwise effected. When a body of men depart with a common objective point, and acting in coöperation, some previous preparation is almost to be presumed. The ability of the members to assemble beyond the limits of the state is in itself an evidence of prearrangement within the state. It will matter little whether the men have actually met, or have acted entirely through the intermediation of their common leaders, provided only the expedition was set on foot within the state which is charged with its prevention. Members of many expeditions held unlawful departed as passengers, and frequently the arms and the men were sent out from different ports. It is not to be expected that expeditions will depart openly and with no attempt to conceal their real purpose. To depart as individuals and meet beyond the boundaries of the state is a common ruse to evade the officers of the law. If the entire law of prevention is not to be nullified, the government must prohibit and punish these expeditions though the actual combination occurs beyond the ordinary range of its authority.

While the authority of the state is thus extended to cover undertakings originated abroad and finally formed abroad, it is always necessary that in some way the expedition shall have been put together within its jurisdiction. Since the entire enterprise need not have been prepared within a single state, the place of the occurrence of any particular part of the undertaking is immaterial. But some preparation must have been made in the particular territory in question in order that some ground for the state's interference may be established. There will need to have been an enlistment of men, the acquisition of equipment, the perfection of plans and organization, the training or drilling of the men for service, 43 Charge to Grand Jury, 5 Blatchf. 556 (Fed. Cas. 18264).

44 U. S v. Murphy, 84 Fed. 609.

or such other things as will offer the possibility of governmental repression. Only then may the expedition be said to have been set on foot within that territory.

4. ACCESSORY CONDUCT

In general, the same rules are applied to the action of accomplices as to that of direct offenders. (Since the efforts at prevention of these enterprises are directed largely toward the preparations for hostilities, those who are to be direct participants in the attack or invasion cannot easily be separated from others indirectly concerned. The state would find prevention impossible if it attempted to punish only those who were to engage in the actual fighting.) Those who provide or prepare the means for an expedition are in fact the real offenders at municipal law, whether they are acting as principals or accomplices. For they commit the abuse of the territory and resources which the state is under obligation to prevent. Therefore, the law of the United States regards the accessory as equally guilty with the member of the expedition and imposes the same penalty upon him.

Where contributions of money, arms, or other provisions have been made, the hostile purpose is very apparent. These are things which will be a material aid to the expedition and will add to its chance of success. These and other things which tend to forward the enterprise and make it possible show on their face such collusion as to involve the contributor in the designs of the direct participants.45 But in testing a given situation to determine whether or not such collusion exists, we may not rely entirely on the fact that assistance is rendered. The final question of guilt or innocence turns here, as in the case of principals, on the fact of intent.

Difficulties will most often be presented in the case of vessels furnishing transportation to an expedition. Vessels engaging in hostilities are, of course, considered as part of the enterprise. But more frequently ships are employed merely for the transportation of the men to the scene of their operations, or of arms for the use of the expedition. The officers of a vessel so used can only escape the charge of intending to forward the

Charge to Grand Jury, 4 Wkly. Law Gaz. 214 (Fed. Cas. 18268). Same, 5 McLean, 306 (Fed. Cas. 18267).

enterprise if the destination and unlawful character of their cargo was unknown at the time of embarkation. 46 Mates of a vessel, sailing from a port of the United States, which had transported an expedition contrary to law, were held guilty of no offense if, at the time of sailing, they did not know that the vessel was to carry an expedition, and did not learn the fact, until they met, beyond the three mile limit, another vessel containing men and arms. 47

The owner of a vessel so employed is equally guilty if he provides her for that purpose, or has knowledge of the use to which she is to be put. 48 In the case of Hart, 49 the defendant was president of a company owning a ship which carried men, weapons, and military supplies from a point off Barnegat to the island of Navassa. The court instructed that to have so provided the means of an expedition with knowledge of the character of the undertaking was contrary to law.

Whether or not the officers of a ship may escape responsibility entirely in case an expedition is taken on unwittingly, and its unlawful character only discovered after sailing, depends upon the absence of the fact of subsequent collusion with the members of the expedition. For instance, the master of an American steamship took on board, after leaving port, men and arms, not being at that time to all appearances a military organization. But during the voyage, the men were allowed to take the arms and continue their preparations by organizing and drilling as though for warlike maneuvers. These facts were considered evidence of the collusion of the master of the vessel, who was held for trial as an accomplice.50 It is immaterial in any case that the assistance so furnished continues during only a part of the voyage. Frequently expeditions are transshipped at an intermediate port to escape detection. But transportation during only a part of the course does not differ in the matter of illegality from transportation during the whole journey, though perhaps more often in the former case the master of the vessel may be unaware of its destination and unlawful purpose. So in the case of Hart, 51 the expedi

46 Hart v. U. S., 84 Fed. 799; U. S. v. Hart, 78 Fed. 868; U. S. v. Rand, 17 Fed. 142. 47 Wiborg v. U. S., 163 U. S. 632.

48 U. S. v. O'Brien, 75 Fed. 900.

49 U. S. v. Hart, 78 Fed. 868; Hart v. U. S., 84 Fed. 799.

50 U. S. v. Hughes, 75 Fed. 267.

51 Supra, note 49.