failure in the performance of its duty. When the United States decided, in the case of the transportation of arms and men to France during the Franco-Prussian war,67 that there was no evidence of such hostile purpose on the part of the persons concerned as would justify interference, it in fact decided that no international delinquency would be occasioned by the refusal to prevent their departure. The intent of the individual is thus first to be proved in order to establish a possible liability on the part of the state. Whatever further is necessary to fix that liability, this much is requisite. The rule of hostile intent is, therefore, consistent with the international obligation and with the law that creates it.

The law of the United States considers an expedition to be an organized body of men capable of military action. But even these qualifications of the term are so construed as to include any number of men, in whatever manner organized, which could commit that offense against a friendly state which the government is bound to prevent. Thus construed, the rule of the municipal law becomes definitive rather than restrictive. It specifies the prohibited undertakings without excluding anything demanded by the general law.

Only those expeditions are punished which proceed from the United States. In other words, the United States denies its responsibility for all expeditions not set on foot within or carried on from this country. This fixes the liability of the state as well as the subject. The chief purpose served is to distinguish between unlawful conduct for which the state is internationally responsible and that for which it is not. It is by this rule that the connection of the government with the offense in question is to be ascertained. The rule is in such agreement with the principles of state responsibility that its validity as well as international application is evident.

There has been no interference with suspicious enterprises by the government of the United States until some overt act has been committed. Since the completion of the internationally forbidden act is effected entirely beyond the jurisdiction of the state attempting to prevent it, it is necessary for that state to fix the point beyond which its subjects may not go with impunity. This is primarily a municipal regulation, since it is only for the purpose of facilitating the 67 Supra, II, 2.

execution of the law. It does not purport to define in any sense the offense which is forbidden nor the extent of the state's responsibility. It establishes only that point at which the government will take cognizance of conduct suspected of being unlawful in its character and purpose. The question as to how far expeditions shall be allowed to go, or how complete an organization may be effected, before there shall be interference, is a matter entirely for the state within whose territory the acts are taking place. It is a question of expediency in the prevention of expeditions.

It is not to be denied, however, that the preparations for expeditions are of international concern. Foreign governments are more desirous of the prevention of undertakings which may cause irreparable damage to their country than of the enforcement of the liability of a delinquent state. Their representatives frequently protest against the seeming negligence of the government in respect to preparations for unlawful enterprises. In this they are entirely within their right, but the legal consequences of their protests are extremely limited. The duty of the state against whose inactivity the objections are made is the prevention of hostilities rather than the prevention of preparations. The extent of the restraint exercised within its territory need be only that which is sufficient to the fulfillment of the duty. No liability is incurred unless there is failure,-unless forcible acts are in fact attempted against another country. Failing in that duty, there is no doubt the state will find its defense the more difficult and its liability the greater if it appears that it negligently delayed its preventive measures, or refused to take cognizance of alleged unlawful acts. The foreign government is concerned, therefore, with the rule as to the commission of an overt act in so far as this rule may be urged as a defense or the overt act as an evidence of delinquency. But it can have no right to require that action be taken against individuals at any particular stage of the proceedings, neither at the time the hostile intent is first suspected, nor after preparations have begun.

Consequently, while it is necessary that action be taken at some time during the setting on foot of an expedition, it cannot be said that the rule applied by the United States is based on international law. That law makes only the general requirement that cognizance of expeditions

be taken in sufficient time that the power of prevention may be effectively exercised. On the other hand, the rule of the municipal law is in ample fulfillment of that requirement.

2. THE RELATION OF THE INDIVIDUAL TO THE LAW

Individuals are not persons in international law. The law binds states only. It deals, it is true, with the rights and duties of citizens and subjects. It guarantees them privileges, and imposes limitations upon their conduct. Thus they become the subjects of international laws. But they are not parties to the law in the sense that their rights and duties may be personally enforced through its remedial processes. Whatever rights they enjoy under it belong to their sovereigns, and whatever obligations are imposed upon them are enforced through their own government, or with its acquiescence. Consequently, while a state may be bound under the law of nations by the duty of abstention from interference in the affairs of foreign states, its subjects are not bound in the same manner by the same law.68 It is for that reason that the state is given the further duty to prevent like interference on the part of private persons. This added obligation is likewise limited to the state on which it is imposed. It does not, ipso facto, create a corresponding duty on the part of the citizen. So far from his having a duty to another state, he is free, for all the international law affects him, from any responsibility to his own state for such objectionable conduct. That responsibility can be created only by municipal law. Though international law indirectly renders his act unlawful, it is only unlawful in the sense that it must be prevented. If the offender is to be punished for his act, it must be done through some municipal law applicable to him, at the hands of a government having jurisdiction over him. If the state chooses to regard the individual act as lawful, there is no power to regard it as unlawful, within the sphere of that state.69 For the effect of the international law is not to impose obligations on private persons but only on the state itself, and to compel it to assume responsibility for objection

68 Wharton, Criminal Law, sec. 1901. See convention relative to the creation of an international prize court, Hague Peace Conference, 1907. Article 4 allows an appeal to the court by individuals directly in some cases.

69 7 Op. At. Gen. 367, 381 (in connection with enlistments).

able private acts. From the standpoint of an offended state, it is the failure to meet this obligation that gives ground for international action; and the offense of the individual is dealt with by it only through the local law. Properly speaking, there cannot be a violation of international law on the part of an individual.

The members of a hostile expedition are, however, ordinarily offenders against the states concerned with their undertaking. It is, of course, conceivable that the state within whose territory the expedition originates might attempt the frustration of its designs without regarding the enterprise as unlawful.70 But so long as the expedition remains under the control and within the jurisdiction of that government, its only offense will be against the local sovereign. As against this state, it may be regarded as offensive from more than one view-point. It may be regarded, in the first place, as having injured a friendly state; and the individuals will be punished by the government in behalf of the one they would have attacked. In the strict theory of international law, this would seem to be the proper conception of the offense. The act is regarded as criminal because of the injury which might be done to a friendly country, and out of international considerations the government punishes the offenders.71 In the second place, they may be punished in the interest of their own state primarily; because it is necessary to the maintenance of orderly and peaceable foreign relations and the fulfillment of the state's obligations. The citizen is not permitted to hazard the peace and safety of his own state by any aggressions on another for whatsoever reasons they are undertaken.72 The crime is thus considered as consisting in acts which involve the government in difficulties.73 In addition to these aspects of the offense, most states, no doubt, regard such conduct as destructive of the domestic tranquillity.74 Furthermore it is in derogation of the sovereignty of the state, and in contravention of the sovereign will. Aside from the statutory offense, unauthorized acts of war are a violation of the national jurisdiction.75 To declare and 70 This was the case before the enactment of the Neutrality Act of 1794.

71 This is implied in the statement of the statutes of the U. S., and England. See Chap. VI, sec. 1.

72 Fillmore, Annual Message, Dec. 2, 1851, Richardson, Messages, V, 113, 115. 73 This is implied in the statements of European legislation. See Chap. VI, sec. 1. 74 U. S. v. The Three Friends, 166 U. S. 1; For. Rel. 1886, 57. 75 Ibid.

carry on war is a fundamental prerogative of the sovereign; and the attempt on the part of citizens to exercise the power is essentially unlawful. "No citizen has a right to go to war on his own authority ... indeed nothing can be more obviously absurd, than to say that all the citizens may be at war, yet the nation at peace.' These acts must, consequently, be prohibited as a mere matter of internal administration, if nothing more.

1976

From whatever standpoint the nature of the crime is considered, its punishment is entirely a local affair. A foreign government cannot be regarded as a party to an action against the individual, beyond its jurisdiction." The acts thus punished are forbidden to the individual only by the municipal law, and, legally considered, his offense is committed against only the one state. Another government can concern itself in the matter only by diplomatic representations.

On coming within the jurisdiction of the state against which they intend to wage war, the members of an expedition are at once subject to the municipal law of that state. If they come to be recognized as belligerents, they are, of course, subject to the special laws of war, and they may receive the special privileges accorded to belligerent parties. But aside from this limitation, the state they attack is free to apply the penalties of its own law to them. They are regarded, personally, as offenders against it. The nature of their crime will be defined by its municipal law. Ordinarily the common criminal statutes are sufficient for this purpose. The expedition will, perhaps, have taken lives, destroyed property, or committed other acts of violence in the nature of common crimes. Or they may have attempted to usurp governmental authority in a treasonable way. Thus they become criminally liable to the offended state, and are subject to such just and reasonable punishment as the government may choose to inflict upon them.78 They are now offenders against this state and it alone; and in dealing with them there need be no account taken of their origin in another country.

76 Mr. Jefferson, Sec. of St., to Mr. Morris, Min. to France, Aug. 16, 1793, American State Papers, For. Rel. I, 167, 168.

77 For. Rel. 1885, 776, 778.

78 For instances, see Chap. VI, sec. 2. Being a political offense, it affords no ground for extradition. (Wharton, Criminal Law, sec. 1908.)