Page:United States Statutes at Large Volume 1.djvu/504

jurisdiction of the same, accept and exercise a commission to serve a foreign prince or state in war by land or sea, the person so offending shall be deemed guilty of a high misdemeanor, and shall be fined not more than two thousand dollars, and shall be imprisoned not exceeding three years.

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against the allegation that this was an original construction or outfit of the vessel for the purposes of war. Moodie v. The Alfred, 3 Dall. 307; 1 Cond. Rep. 135.

A French privateer had taken out her guns, masts, and sails, which remained on shore until the general repairs were completed, and they were again put on board; after which she sailed on a cruise, and captured a British vessel, which she sent into Charleston. On a claim of restitution on the ground that the vessel had been originally fitted out in the United States, in a neutral port, the court decided that the mere replacement of her force could not be considered as an augmentation; even if an augmentation of force should be considered a cause for restoration. Moodie v. The sloop Phœbe Ann, 3 Dall. 319; 1 Cond. Rep. 139.
A neutral nation may, if so disposed, without a breach of her neutrality, grant permission to both belligerents to equip their vessels of war within her territories. But without such permission, the subjects of such belligerent powers have no right to equip vessels of war, or to augment their force, either with arms or men, within the neutral territory. The Alerta v. Blas Moran, 9 Cranch, 369; 3 Cond. Rep. 425.
Such unauthorized acts violate the sovereignty of a neutral nation. All captures made by such equipments are illegal in respect to such nation, and it is competent for her courts to punish the offenders; and if prizes are brought within their jurisdiction, to order and cause them to be restored. Ibid.
It is immaterial whether the persons taken on board at the neutral port were native American citizens or foreigners domiciled in the United States. Neither the law of nations, nor the act of Congress recognizes any distinction, except to the subjects of the state in whose service they were enlisted transiently in the United States. Ibid.
An augmentation of force, affects only captures made during the original cruise. The offence terminates at the end of the voyage, and does not affect subsequent transactions. But as to captures made during the same cruise, the doctrine has been long established, that such illegal augmentation of force is a violation of the law of nations, as well as of our own municipal laws; and as a violation of our neutrality, it affects the captures subsequently made with the character of torts; and justifies and requires a restitution of the property to such persons as have been injured by such misconduct. The Santissima Trinidad, 7 Wheat. 283; 5 Cond. Rep. 284.
The practice is now fully established, that prizes made by vessels which have violated the acts of Congress enacted for the preservation of the neutrality of the United States, if brought within her territory shall be restored. The Gran Para, [[[United States Reports/Volume 20|7 Wheat.]] 471; 5 Cond. Rep. 328.
It has never been held that the offence adheres to the vessel under whatever change takes place; nor that it does not terminate when the voyage, for which the illegal outfit was made, shall have ended. But if this termination was merely colourable, and the vessel was equipped with the intention of being employed on the cruise during which the capture was made, the violation is not purged. Ibid.
Property belonging to a friendly power, captured on the high seas by a privateer, armed and fitted out by citizens of the United States, in the waters of the United States, as a vessel of war, and commanded by a citizen of the United States, is illegally captured; and must be restored to its owner, if brought within our jurisdiction. The Fanny, 9 Wheat. 658; 5 Cond. Rep. 722.
A French privateer fitted out in the United States, and commissioned as a privateer by the French minister residing in the United States, being proscribed by the President of the United States, dismantled and sold in Charleston, was afterwards fitted out for war in a foreign port, and was commissioned by France. Captures made by her are not illegal, and are no violation of the neutrality of the United States. Williamson v. The Betsey, Bee’s Admiralty Decisions, 67.
The laws of neutrality and nations do not, in any case, interdict vessels from going to sea armed and fitted for defensive war. Bee’s Adm. Decisions, 69.
It is a violation of the act of June 5, 1794, to concert an expedition from the United States to commit hostilities against a power at peace with the United States; and it is unimportant that such expedition originated beyond seas, if carried on from this country. It is unimportant whether the persons engaged in such a purpose, engage the whole vessel to themselves, or depart as passengers. 1 Peters’s C. C. R. 487.
The previous knowledge or approbation of the President of the United States, of the illegal act of a citizen, can afford him no justification of the breach of a constitutional law. Trial of Smith and Ogden, 237.
To bring a case within the 5th section of the act of June 5, 1794, made perpetual by the act of April 24, 1800, prohibiting any person within the territory or jurisdiction of the United States from providing or preparing the means of a military expedition or enterprise to be carried on from thence, against the territory or dominions of any foreign prince or state, with whom the United States are at peace, it is immaterial whether or not the vessel, at the identical time of sailing, is in complete readiness for hostile engagement. If the vessel sailed with the means or intent to carry it on, such an enterprise is within the act. Ibid.
Indictment under the 3d section of the act for the punishment of certain crimes against the United States, passed April 20, 1818. The indictment charged the defendant with being knowingly concerned in fitting out in the port of Baltimore, a vessel with intent to employ her in the service of a “foreign people,” “The United Provinces of Buenos Ayres,” against the subjects of the emperor of Brazil with whom the United States were at peace. The vessel went from Baltimore to St. Thomas, and was there fully armed. She afterwards cruised under the Buenos Ayrean flag. Held:—To bring the defendant within the words of the act, it is not necessary to charge him with being concerned in fitting out and arming the vessel. The words are, fitting out or arming; either will constitute the offence. It is sufficient if the indictment charges the offence in the words of the act. The United States v. John B. Quincy, 6 Peters, 445.
The law does not prohibit armed vessels, belonging to citizens of the United States, from sailing out of our ports. It only requires the owner of such vessels to give security, that such vessels shall not be employed by them to commit hostilities against a foreign power at peace with the United States. Ibid.