tion was transferred at the island of Navassa to another ship which then proceeded with it toward Cuba. But the knowledge of the one that provided the first ship, of the final destination of the men was sufficient to convict him.

Where assistance is secured through compulsion, no collusion may of course be presumed. An accomplice is a voluntary assistant in a crime. In admitting the testimony of witnesses in the case of an expedition across the Mexican border, those who claimed they had been captured and compelled to join the expedition under pressure of force and threats of violence were not regarded as accomplices. 52

There appears to be no obligation on the part of one country to punish persons for assistance rendered to expeditions proceeding entirely from other countries. The existence of an expedition is a necessary condition precedent to the existence of accessories. When the fact of an expedition is a matter beyond the power or province of the government to ascertain, no expedition exists in the view of the law. It will then have no obligation to prevent the action of accomplices. To convict of providing the means for a military enterprise, it must be proved that the enterprise was organized in or carried on from the country, as well as the fact that some one was preparing the means for it. 53 In 1891, during the Balmaceda revolution in Chile, arms and ammunition were purchased in the United States, and were sent away in the armed transport of one of the parties. While this was perhaps not clearly a commercial venture, the expedition, if there was such, could not be said to have been carried on from the United States. 54 Likewise, contributions made directly to armed forces in a foreign country are not within the prohibition of the law. For however much such donations may further the hostilities, they are not contributions to expeditions actually put together in or carried on from a friendly state. 55

But once the fact of the expedition is established, then any action over which the state has control, or the action of any person over which the state has jurisdiction is unlawful if it contributes to an offense, even 52 U. S. v. Ybanez, 53 Fed. 536.

53 U. S. v. Hart, 78 Fed. 868.

54 U. S. v. Trumbull, 48 Fed. 99, 103; see also U. S. v. The Itata, 49 Fed. 646; and the case of The Wahlberg, For. Rel. 1895, II, 867-876.

65 H. Ex. Doc. 74, 25 Cong. 2 Sess. p. 7.

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though it takes effect beyond the boundaries. When the captain and mate of a vessel, knowing the character of their cargo and its intended purpose, had transported arms from a port in the United States to a foreign port together with men and stores to be used in a military expedition from this country, they were found guilty of a violation of the law. 56 The taking on board of expeditions on the high seas is an oftrepeated offense of this sort. officers of the vessel are liable to prosecution and punishment as though On returning within jurisdiction, the their act had been completed within the territorial waters.

✓ Inas

5. THE CONSUMMATION OF THE OFFENSE

Inasmuch as the state is most largely concerned with the attempts at setting on foot expeditions, it is necessary to consider how far the individual must have gone before the government will take cognizance of his action as unlawful.

Though the fact of a hostile intention is usually a point most difficult of proof, it occasionally happens that the unlawful purpose of some person is openly declared. When this occurs in the absence of any positive evidence of its substantial nature, as is generally the case, the question arises as to whether or not the intent in itself constitutes an offense within the meaning of the law. On this point, however, there can be little controversy. The intention to commit a crime is not per se a crime. "Mere words, spoken or written, though indicative of the most determined purpose to do the forbidden acts, will not constitute an offense." "The offense is not complete without some overt or definite act." 57

Of more frequent occurrence has been the revolutionary agitation within the United States against other countries, unaccompanied by any declaration of hostile purpose. Organizations have been created for the purpose of stirring up or fostering rebellion abroad. Notorious among these have been the "revolutionary aid societies" and "immigrant associations" of the Irish, and the Fenian brotherhood. They have been

56 U. S. v. Rand, 17 Fed. 142.

57 U. S. v. Lumsden, 1 Bond, 5 (Fed. Cas. 15641). See also S. Ex. Doc. 57, Cong. 1 Sess. p. 48.

a source of trouble for the United States with other countries; and the inability of the government legally to suppress them has made more difficult the performance of international duties.

In 1885, Mr. Valera, the Spanish minister at Washington, directed a note to the Secretary of State in which he seemed to hold it "the duty of a government to repress outward manifestations which may result in overt violations of the law." 58 But the Government of the United States refuses-in fact it has not the power-to interfere with expressions of individual opinion unless some overt act accompanies the opinion which it is desired to punish. "We do not punish such proceedings until the spirit of interference which induces them reaches its natural consummation, that of attempts to interfere in the affairs of a foreign country by force." 59 The Robert Emmett Club of Cincinnati (1885) was an organization having for its object the overthrow of the English Government in Ireland. It undertook the uniting of all Irishmen in America for this ultimate purpose. But the members confined themselves entirely to moral agitation, and were guilty of no overt act which would justify their punishment. It was therefore impossible to suppress their activities.60 In connection with the Fenian expeditions from the United States into Canada, this government maintained that it had performed its full duty in repressing only overt acts, not denouncing the disturbers while they confined themselves to moral agitation.61

The consummation of the offense, then, is the commission of an overt act. It is the taking of the first definite steps in the enterprise, "providing the means for the expedition, furnishing munitions of war or money, enlisting men, and, in short, doing anything and everything that is necessary to the commencement and prosecution of the enterprise." 62 It is simply some definite act which leads to an attempt at forcible interference in a foreign territory. It is obvious, of course, that these acts must be sufficient to show the intention to set on foot an 58 From the reply of the Secretary of State, Mr. Bayard, For. Rel., 1885, 776. 59 Mr. Cushing, At. Gen., to Mr. Marcy, Sec. of St., Dec. 2, 1856, 8 Op. At. Gen. 216.

60 U. S. v. Lumsden, 1 Bond, 5 (Fed. Cas. 15641).

61 Dip. Corres. 1865, II, 103; 1866, I, 77.

62 Charge to Grand Jury, 5 McLean, 249 (Fed. Cas. 18266).

expedition,63 for otherwise an essential factor of unlawful action would be lacking. But given the hostile intent and the overt act, the actual setting forth of the expedition is an unimportant question in the prosecution of the offenders. The inception of the expedition is a violation of the law 64

CHAPTER III. INTERNATIONAL DISTINGUISHED FROM MUNICIPAL PHASES OF THE LAW

1. BEARING OF THE MUNICIPAL ON THE INTERNATIONAL LAW The definition of unlawful conduct which has formed the basis of the practice of the United States is set forth in the municipal law. As we shall see presently, individuals are only indirectly parties to the international delict. In one sense, therefore, the law applied to them can be none other than municipal. But we shall find also that only through their action is an occasion for the international delict created, and that their conduct may have international consequences.65 In another sense, then, the law governing their conduct is international. It is for the purpose of controlling the relations of the citizens of one state with another state, and it has important effects in the relation of government to government. This law, consequently, tends to conform to the requirements of international obligations, and thus to express the law of nations which has called it forth.

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Reference has previously been made to the fact that the law on hostile expeditions, adopted by the United States, originated in the development of foreign relations. The offense it purports to prohibit is an aggression against a foreign government, and, in the application of the law, the direct interest of the government has seldom been other than the preservation of peaceful relations with other states. While, therefore, the special relation set up by this municipal law is one of the state and its subject, it arises out of the efforts of the state to make the conduct of its subjects conform to the requirements

63 Charge to Grand Jury, Fed. Cas. 18265.

64 U. S. v. O'Sullivan, Fed. Cas. 15975; U. S. v. Ybanez, 53 Fed. 536.

of international obligations. This fact has appeared in the discussion given to the various principles applied to individual conduct. Nevertheless, if this municipal law has in fact departed from the strict necessities created by the law of nations, in so far as it has, it must be regarded as of only local validity. It may be intended to serve the ends of local regulation as well as international, but its effect in the fulfillment of the state's obligations must be in conformity with international law if its principles are to be acceptable to other states.

The international significance of the distinctions between lawful and unlawful conduct of citizens or subjects appears when they are considered from the standpoint of interstate relations alone. The United States interferes with the conduct of individuals only upon evidence of their hostile intention. It is obvious that the interests of other countries will not demand the restraint of undertakings not directed toward an offense against them; that is, of undertakings in which there is no hostile purpose. Conduct in which that purpose is lacking is ordinarily not objectionable to the foreign state, and is, consequently, not prohibited by international law. The duty of prevention requires the repression of attempts at and preparations for hostilities only. It is difficult to form a statement of the duty which does not involve the idea of a hostile design or intention. Therefore while any state may employ its own methods in the performance of its duty, and may prohibit whatever acts it chooses for the purpose of forestalling expeditions, it will find no warrant in international law for interfering with other acts than those which are coupled with an intention of attacking a friendly state. Any rule of prohibited conduct which may possibly fail to include all undertakings so intended falls short of the requirement of the international obligation. The only evidence which is material to the proof of an internationally forbidden act in the preparation of an expedition is that which establishes the intention subsequently to commit hostilities. The immediate acts are not in themselves a test of innocence or guilt. It is only the evidence of the ultimate purpose of these acts which establishes the duty of the state with regard to them.

The absence of the unlawful purpose, in absolving the individual, at the same time frees the state from culpability. The lack of any evidence of hostile intent is the most complete defense of the state charged with