ACCEPTANCE OF COMMISSION; ENLISTMENTS. 879 §§ 1292, 1293.] The Hague Conference adopted the following resolution: The conference expresses the wish that the question of the rights and duties of neutrals should be considered at another conference. The American delegates voted for this resolution, but a few powers abstained from voting. For. Rel. 1899, 513, 520. III. PROHIBITED ACTS. 1. ACCEPTANCE OF COMMISSION. § 1292. "Every citizen of the United States who, within the territory or jurisdiction thereof, accepts and exercises a commission to serve a foreign prince, state, colony, district, or people, in war, by land or by sea, against any prince, state, colony, district, or people, with whom the United States are at peace, shall be deemed guilty of a high misdemeanor, and shall be fined not more than two thousand dollars and imprisoned not more than three years." Sec. 5281, Revised Statutes. One Isaac Williams was convicted in a United States court in Connecticut, in 1797, and fined and imprisoned for a violation of the neutrality laws in accepting in the United States a French commission and under the authority thereof committing acts of hostility against Great Britain. Murray v. Schooner Charming Betsy, 2 Cranch, 64, 82, note, summarizing the case as reported in the National Magazine, No. 3, p. 254. 2. ENLISTMENTS. § 1293. "Every person who, within the territory or jurisdiction of the United States, enlists or enters himself, or hires or retains another person to enlist or enter himself, or to go beyond the limits or juris diction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district or people, as a soldier, or as a marine or seaman, on board of any vessel of war, letter of marque, or privateer, shall be deemed guilty of high misdemeanor, and shall be fined not more than one thousand dollars, and imprisoned not more than three years." Sec. 5282, Revised Statutes. "The provisions of this Title [R. S., §§ 5281-5291] shall not be construed to extend to any subject or citizen of any foreign prince, state, colony, district, or people, who is transiently within the United States, and [enlist] [enlists] or enters himself on board of any vessel of war, letter of marque, or privateer, which at the time of its arrival within the United States was fitted and equipped as such, or hires or retains another subject or citizen of the same foreign prince, state, colony, district, or people, who is transiently within the United States, to enlist or enter himself to serve such foreign prince, state, colony, district, or people, on board such vessel of war, letter of marque, or privateer, if the United States shall then be at peace with such foreign prince, state, colony, district, or people. Nor shall they be construed to prevent the prosecution or punishment of treason, or of any piracy defined by the laws of the United States." Sec. 5291, Revised Statutes. It is a breach of the law of nations, punishable by indictment in the courts, to enlist in, or to aid in fitting out, foreign belligerent cruisers. Henfield's Case, Wharton's State Trials, 49; Villato's Case, id. 185; Williams's Case, id. 652. "Vessels of either of the parties not armed, or armed previous to their coming into the ports of the United States, which shall not have infringed any of the foregoing terms, may lawfully engage or enlist therein their own subjects or citizens, not being inhabitants. of the United States." Hamilton's Treasury circular of Aug. 4, 1793, 1 Am. State Papers, For. See Mr. Jefferson, Sec. of State, to Mr. Ternant, French min., May 15, "Mr. Genet asserts his right of arming in our ports and of enlisting our citizens, and that we have no right to restrain him or punish them. Examining this question under the law of nations, founded on the general sense and usage of mankind, we have produced proofs, from the most enlightened and approved writers on the subject, that a neutral nation must, in all things relating to the war, observe an exact impartiality towards the parties, that favors to one to the prejudice of the other, would import a fraudulent neutrality, of which no nation would be the dupe; that no succor should be given to either, unless stipulated by treaty, in men, arms, or anything else directly serving for war; that the right of raising troops being one of the rights of sovereignty, and consequently appertaining exclusively to the nation itself, no foreign power or person can levy men within its territory without its consent; and he who does may be rightfully and severely punished; that if the United States have a right to refuse the permission to arm vessels and raise men within their ports and territories, they are bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments. To these principles of the law of nations Mr. Genet answers. by calling them diplomatic subtilties' and 'aphorisms of Vattel. and others. But something more than this is necessary to disprove them; and till they are disproved, we hold it certain that the law of nations and the rules of neutrality forbid our permitting either party to arm in our ports." 6 Mr. Jefferson, Sec. of State, to Mr. Morris, min. to France, Aug. 16, 1793, 4 Jefferson's Works, 34; Am. State Papers, For. Rel. I. 167, 168. Mariners may be said to be citizens of the world; and it is usual for them of all countries to serve on board of any merchant ship that will take them into pay, and this practice, from the manner of their livelihood, seems, for obvious reasons, founded on convenience and, in many instances, on necessity. If foreign sovereigns purchase ships in the United States, and load them with provisions for the use of their fleets or armies, those ships are to be considered as commercially employed; and if they be not attached to the naval or military expeditions as part thereof in accompanying the fleet, or closely following the army from place to place for the purpose of furnishing them with supplies, there can be no pretext for restraining American sailors from hiring on board of them for the purpose of gaining a support in their customary way of occupation. A citizen of a neutral nation has a right to render his personal service as a sailor on board of any vessel whatever employed in mere commerce, though owned by either of the belligerent powers or the subjects or citizens of either, and nothing hostile can be imputed to such conduct. Lee, At. Gen., 1796, 1 Op. 61. To same general effect see 4 Op. 336; United States r. Skinner, 2 Wheel. An American citizen may enter either the land or naval service of a foreign government without compromising the neutrality of his own. The Santissima Trinidad, 1 Brock. 478. Colombian vessels are entitled, under articles 6 and 31 of the treaty with that Republic of 1824, to make repairs in our ports when forced into them by stress of weather, but not to enlist recruits there, either from our citizens or from foreigners, except such as may be transiently within the United States. Wirt, At. Gen., 1825, 2 Op. 4. The enlistment at New York of seamen or others for service on war vessels of Mexico (she being at war with Texas), such persons not being Mexicans transiently within the United States, is a breach of the act of 1818. Nelson, At. Gen., 1844, 4 Op. 336. The undertaking of a belligerent to enlist troops of land or sea in a neutral state without the previous consent of the latter is a hostile attack on its national sovereignty. The act of Congress prohibiting foreign enlistments is a matter of domestic or municipal right as to which foreign governments have no right to inquire, the international offense being independent of the question of the existence of a prohibitory act of Congress. Cushing, At. Gen., 1855, 7 Op. 367. In this opinion it was advised that a foreign minister who engages in the enlistment of troops in the United States for his government is subject to be summarily expelled, or, after demand for his recall, dismissed by the President. See supra, § 640. If agents of the British Government, being instructed to enlist military recruits, succeed in evading the municipal law and so escape punishment as malefactors, " such successful evasion serves to increase the intensity of the international wrong done the United States." Cushing, At. Gen., 1855, 8 Op. 468; id. 476. For the indictment in United States v. Hertz, for illegal recruiting, see "While the laws of the Union are thus peremptory in their prohibition of the equipment or armament of belligerent cruisers in our ports, they provide not less absolutely that no person shall, within the territory or jurisdiction of the United States, enlist or enter himself, or hire or retain another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States with intent to be enlisted or entered, in the service of any foreign state, either as a soldier or as a marine or seaman on board of any vessel of war, lette of marque, or privateer. And these enactments are also in strict conformity with the law of nations, which declares that no state has the right to raise troops for land or sea service in another state without its consent, and that, whether forbidden by the municipal law or not, the very attempt to do it without such consent is an attack on the national sovereignty. "Such being the public rights and the municipal law of the United States, no solicitude on the subject was entertained by this Government when, a year since, the British Parliament passed an act to provide for the enlistment of foreigners in the military service of Great Britain. Nothing on the face of the act or in its public history indicated that the British Government proposed to attempt recruitment in the United States, nor did it ever give intimation of such intention to this Government. It was matter of surprise, therefore, to find subsequently that the engagement of persons within the United States to proceed to Halifax, in the British province of Nova Scotia, and there enlist in the service of Great Britain, was going on extensively, with little or no disguise. Ordinary legal steps were immediately taken to arrest and punish parties concerned, and so put an end to acts infringing the municipal law and derogatory to our sovereignty. Meanwhile suitable representations on the subject were addressed to the British Government. 66 Thereupon it became known, by the admission of the British Government itself, that the attempt to draw recruits from this country originated with it, or at least had its approval and sanction; but it also appeared that the public agents engaged in it had 'stringent instructions' not to violate the municipal law of the United States. "It is difficult to understand how it should have been supposed that troops could be raised here by Great Britain without violation of the municipal law. The unmistakable object of the law was to prevent every such act which if performed must be either in violation of the law or in studied evasion of it; and in either alternative, the act done would be alike injurious to the sovereignty of the United States. "In the meantime the matter acquired additional importance by the recruitments in the United States not being discontinued, and the disclosure of the fact that they were prosecuted upon a systematic plan devised by official authority; that recruiting rendezvous had been opened in our principal cities and depots for the reception of recruits established on our frontier, and the whole business conducted under the supervision and by the regular cooperation of British officers, civil and military, some in the North American provinces and some in the United States. The complicity of those officers in an undertaking which could only be accomplished by defying our laws, throwing suspicion over our attitude of neutrality, and disregarding our territorial rights is conclusively proved by the evidence elicited on the trial of such of their agents as have been apprehended and convicted. Some of the officers thus implicated are of high official position, and many of them beyond our jurisdiction, so that legal proceedings could not reach the source of the mischief. "These considerations, and the fact that the cause of complaint was not a mere casual occurrence, but a deliberate design, entered upon with full knowledge of our laws and national policy and conducted by responsible public functionaries, impelled me to present the case to the British Government, in order to secure not only a |