The several acts described in and made punishable by Rev.Stat. §
5286, are stated therein separately and disjunctively, connected by
the conjunction "or." The indictment in this case, charging that
the defendants committed some of those acts, connects them by the
conjunction "and." No question of duplicity was raised by the
defendants' counsel. The trial judge instructed the jury that the
evidence would not justify a conviction of anything more than
providing the means for, or aiding the military expeditions set
forth in the indictment, by furnishing transportation for their
men, etc.
Held that the verdict could not be disturbed on
the ground that more than one offense was included in the same
count of the indictment.
Providing, or preparing the means of transportation for such a
military expedition or enterprise as is referred to in Rev.Stat. §
5286 is one of the forms of provision or preparation therein
denounced.
A hostile expedition, dispatched from a port of the United
States, is within the words "carried on from thence."
A body of men went on board a tug in a port of the United
States, loaded with arms; were taken by it thirty or forty miles
and out to sea; met a steamer outside the three mile limit by prior
arrangement; boarded her with the arms, opened the boxes and
distributed the arms among themselves; drilled to some extent; were
apparently officered, and then, as preconcerted, disembarked to
effect an armed landing on the coast of Cuba when the United States
were at peace with Spain.
Held that this constituted a
military expedition or enterprise within the provisions of the
Revised Statutes.
On the question whether the defendants aided the expedition with
knowledge of the facts, the jury were instructed that they must
acquit unless they were satisfied beyond reasonable doubt that
defendants, when they left Philadelphia, had knowledge of the
expedition and its objects and had arranged and provided for its
transportation.
Held that the defendants had no adequate
ground of complaint on this branch of the case.
A statement of facts by the court in a recapitulation of the
evidence, based on uncontradicted testimony, no rule of law being
incorrectly stated and the facts being submitted to the
determination of the jury, is not open to exception.
The ruling in
Simmons v. United States, 142 U.
S. 148, that
"the judge presiding at a trial, civil or criminal, in any court
of the United States, may express his opinion to the jury upon the
questions of fact which he submits
Page 163 U. S. 633
to their determination"
applied to statements by the court below in its charge in this
case.
Assuming that a secret combination between the party and the
captain or officers of the
Horsa had been proven, then, on
the question whether such combination was lawful or not, the
declarations of those engaged in it explanatory of acts done in
furtherance of its object were competent.
Where a plain error has been committed in a matter vital to
defendants, this Court is at liberty to correct it, although the
question may not be properly raised, and being of opinion that
adequate proof of guilty knowledge or participation on the part of
the mates is not shown by the record, it reverses the judgment as
to them, although no exception was taken.
Wiborg, the captain, and Petersen and Johansen, the mates, of
the steamer
Horsa, were indicted in the District Court of
the United States for the Eastern District of Pennsylvania, under
section 5286 of the Revised Statutes. The indictment charged that
defendants,
"mariners at the district aforesaid, and within the jurisdiction
of this Court, did, within the territory and jurisdiction of the
United States, to-wit at the port of Philadelphia, Pennsylvania,
within the district aforesaid, begin, set on foot, and provide and
prepare the means for a certain military expedition and enterprise
to be carried on from thence against the territory and dominions of
a foreign prince, to-wit, against the Island of Cuba, the said
Island of Cuba being then and there the territory and dominions of
the King of Spain, the said United States being then and there at
peace with the King of Spain, contrary to the form of the act of
Congress in such case made and provided, and against the peace and
dignity of the United States of America."
They were tried before Judge Butler and a jury, and convicted.
Motions in arrest of judgment and for a new trial were severally
made and overruled, and defendants were sentenced to pay fines and
to serve terms in the state penitentiary. This writ of error was
thereupon sued out, and defendants admitted to bail.
The
Horsa was a Danish steamer, sailing under the
Danish flag, and defendant Wiborg, its captain, was a subject of
the King of Denmark, as were also his codefendants, as claimed by
their counsel.
Page 163 U. S. 634
The
Horsa was engaged in the fruit business for John D.
Hart & Company, of Philadelphia, and on November 9, 1895,
cleared from Philadelphia for Port Antonio, Jamaica. She had on
board but little cargo, consisting of two lifeboats, a lot of empty
boxes and barrels, two horses, some horse feed, bales of hay, and
boxes of corn, all of which were entered on her manifest. Just
before sailing, Capt. Wiborg received a message (in writing, but
not produced) which, he said, was: "After I passed the breakwater,
to proceed north near Barnegat and await further orders." The
Horsa sailed between six and seven p.m., and, after
passing the Delaware breakwater, her proper course would be
southward. She turned, however, to the northward, went up the
Jersey coast to Barnegat Light, and anchored on the high seas,
between three and four miles off the shore. Between ten and eleven
the same evening, the steam lighter
J. S. T. Stranahan
sailed from Brooklyn, carrying some cases of goods and two
lifeboats, which had been put on board by the crew of the lighter
during the evening. On the lower bay of New York, below Staten
Island, during the night, she took on board between thirty and
forty passengers, mostly dark-complexioned men, speaking a foreign
language, apparently Cubans or Spaniards. The lighter then ran down
to Barnegat, where she saw the
Horsa under a white flag.
She also ran up a white flag, went alongside, and put aboard her
passengers, with the cases of goods and the lifeboats. They brought
authority in writing from John D. Hart & Company, which was not
produced. Captain Wiborg saw the transfer made, and assented to it.
His firemen complaining, he answered: "I told them, if anybody had
to hang for this, I would be the man to hang for it." He testified
that the man on the lighter brought him a message from John D. Hart
& Company.
"He told me to take those men and luggage and whatever they had
aboard the
Horsa, and let them off whenever they called
for it to be let off. I shipped two boats at the same time, and the
order of my message was to deliver those two boats to those men,
and the two boats that I had shipped here in Philadelphia. . . .
The only order was they had a colored man there that they
Page 163 U. S. 635
called the 'pilot,' and whenever he called for them to be let
off, I should let them off, and give them the boats."
As to the boats taken on at Philadelphia and those taken on off
Barnegat, he was
"to deliver them to these men as soon as they called for them. .
. . The pilot did not tell me where he was going. I did talk to
him, but he could talk very little English."
The captain testified that the writing from J. D. Hart &
Company "to take whatever was in the tug, the men and their luggage
and boxes, and let them off whenever they called for it to be let
off," did not strike him as an unusual thing. It did not strike him
as unusual "that these men were to be taken on board, and turned
out on the sea with the boats." It appeared and was admitted that
there was an insurrection in Cuba. T he captain was informed that
the party was going to Cuba, and believed the men were going to
fight for Cuba, but was careful to ask no questions, and testified
that he considered his own part in the affair to be lawful. The
charter party was not produced.
After boarding the
Horsa, these persons broke open the
boxes which they had brought with them, and took out rifles,
swords, and machetes, and one cannon. They also had cartridge
belts, medicines, and bandages with them. They were not in uniform,
but there was evidence that some of them had caps with a little
flag, which they said was a Cuban flag. They brought their own food
with them. The evidence tended to show that when these men divided
up the arms, every man had a rifle; that certain of them,
understood to be officers, had swords and revolvers; that one
seemed to be in command of them, and that this commander asked some
of the crew whether they would fight if attacked by a Spanish
gunboat. There was also some evidence that there were military
exercises in the nature of drilling by from three to seven men at a
time; that these persons stated that they were going to Cuba to
fight the Spaniards; that, on the second day out, they made small
canvas bags to put cartridges in, and unpacked a bale of blankets
which they had brought with them, wrapped one hundred and fifty
spare rifles in these blankets in small bundles, about five in
each, and threw the
Page 163 U. S. 636
boxes overboard in which the rifles had come, taking a rifle,
sword, and machete apiece, and practicing with them and the cannon.
There were three kinds of cartridges and two kinds of rifles. One
witness stated that, as he was informed by them, there were small
Winchesters for the cavalry, and big rifles for the infantry; big
revolvers for the officers, and that the cannon was a Maxim gun, in
charge of a French Canadian. This machine gun was worked with a
slot and a crank, and had its own cartridges. The witness saw it
worked, and saw them practicing with it, and the man in charge
showed him how they were doing it. Some testimony was introduced on
behalf of defendants to the effect that a machete is generally
carried by the inhabitants of the West Indies, and has many
peaceful uses. One of the defendants' witnesses admitted that it
was a formidable weapon, and, moreover, that he had never seen
citizens carry guns in Cuba. It is unquestioned that the machete is
used for both war and peace, it being described in the Century
Dictionary as a "heavy knife or cutlass, used among Spanish
colonists and Spanish American countries both as a tool and as a
weapon," and by Webster as
"a large, heavy knife, resembling a broadsword, often two or
three feet in length, used by the inhabitants of Spanish America as
a hatchet to cut their way through thickets and for various other
purposes."
After leaving Barnegat, the
Horsa took the usual course
for Jamaica, which follows he Cuban coast for about six hours. The
usual color of her funnel was yellow below with red above and black
on top, and it was so painted when she left Philadelphia. While she
was at sea, the funnel was repainted red and black, and, when she
returned to Philadelphia, it was black, red, and yellow. The name
of the
Horsa was painted out amidships, but her name was
on the stern in brass letters and on the bow, and those letters
were not painted over to the captain's knowledge. About six miles
off the coast of Cuba, the colored pilot gave orders to disembark.
This was about eleven o'clock at night, and the disembarkation was
conducted under the supervision of Captain Wiborg, who had the
lights of the vessel put out. The two boats
Page 163 U. S. 637
were launched which had come on board at Philadelphia, and also
those which had come with the lighter, and Captain Wiborg sold the
men one of the ship's boats. As one of the boats leaked, another
was lowered from the ship. The passengers took to the boats, taking
with them all the ammunition and arms they could carry. The steamer
then undertook to tow the boats, but a strange light was seen in
the distance, and at the request of the men, the captain cut the
boats loose, and started away at full speed. Some forty boxes of
cartridges had been left on the
Horsa because there was no
room for them on the boats, and Captain Wiborg directed that these
should be thrown overboard. He said this was to avoid getting into
trouble at Port Antonio, since the boxes were not manifested for
that port. The
Horsa then completed her voyage to Port
Antonio. The captain said he told the collector there he had lost
two boats, "to put him off his guard."
Defendants' counsel requested the court to give to the jury
thirteen points or instructions, of which the fourth, fifth, sixth,
seventh, eighth, ninth, and eleventh were as follows:
"4. That the laws of the United States and the section under
which the defendants are indicted do not prohibit transporting of
arms or of military equipments to a foreign country, or forbid one
or more individuals, singly or in unarmed association, from leaving
the United States for the purpose of joining in any military
operations which are being carried on between other countries, or
between different parties in the same country."
"5. That before the jury can find the defendants guilty under
this indictment, they must first find that there was a 'military
expedition or enterprise' against the territory of the King of
Spain. A military expedition or enterprise does not exist unless
there is a military organization of some kind, designated as
infantry, cavalry, or artillery and officered and equipped for
active hostile operations."
"6. That if the jury find that there were transported on board
of the
Horsa arms and men, but the same were not a
'military organization as infantry, cavalry, or artillery, and
Page 163 U. S. 638
officered and equipped, or in readiness to be officered and
equipped,' then the jury must find the defendants not guilty."
"7. That it is not an offense against the laws of the United
States for a shipper to ship arms to a foreign country, or for
volunteers to go to a foreign country for the purpose of joining in
military operations which are being carried on between other
countries or between different parties in the same country. In such
cases, the shipper and volunteer would run the risk, the one of
capture of his property, and the other of the capture of his person
by the foreign power, but the master of the ship transporting such
arms and volunteers, not being a military expedition or enterprise,
would not commit any offense against the laws of the United States,
and would not be liable under this indictment."
"8. That if the jury find from the evidence in this case that
the officers of the steamship
Horsa took on board, off the
coast of New Jersey, on the high seas, a number of men, all dressed
as citizens, without arms and equipments on their persons, and at
the same time took on board certain boxes of arms and ammunition
and munitions of war, but that the said men were not organized as
infantry, cavalry, or artillery or ready for such organization, the
jury are instructed that they must find the defendants not guilty,
even if the jury believe that the passengers on board intended to
enlist, on arrival in Cuba, in the Cuban army."
"9. That if the jury find from the evidence that the defendants
took on board their vessel, off the New Jersey coast, a number of
men, unarmed and not organized either as infantry, cavalry, or
artillery, and at the same time took on board boxes of ammunition
and arms, the jury are instructed that they must find the
defendants not guilty, even if the jury should believe that the men
intended upon arrival in Cuba to enlist in the Cuban army and that
the boxes of arms were intended for use in the Cuban army."
"11. That if the jury find from the evidence that the passengers
and boxes of arms did not constitute a military expedition or
enterprise, but that the said passengers were simply going to Cuba
to enlist in either army, and the said
Page 163 U. S. 639
arms and ammunition were being conveyed to Cuba to be used by
either army, then the jury are instructed that the defendants, in
transporting them in due course of their business, committed no
offense against the laws of the United States, and the jury are
further instructed that all evidence of secrecy, such as taking on
the passengers and boxes of arms on the high seas and putting out
the lights off the coast of Cuba, were acts which the defendants
might lawfully do to avoid the capture of the passengers and the
capture of the property from off their ship by Spanish men of war;
but under such circumstances, if the jury find there was no
military expedition or enterprise, such acts would not of
themselves be evidence of any intent to violate the statute of the
United States under which the defendants are indicted."
The court charged the jury, explaining the indictment, and then
continued as follows:
"The evidence heard would not justify a conviction of anything
more than providing the means for or aiding such military
expedition by furnishing transportation for the men, their arms,
baggage, etc. To convict them, you must be fully satisfied by the
evidence that a military expedition was organized in this country,
to be carried out as and with the object charged in the indictment,
and that the defendants, with knowledge of this, provided means for
its assistance, and assisted it, as before stated."
"Thus, you observe the case presents two questions: first, was
such military expedition organized here in the United States?;
secondly, did the defendants render the assistance stated here with
knowledge of the facts?"
"In passing on the first question, it is necessary to understand
what constitutes a military expedition within the meaning of the
statute. For the purposes of this case, it is sufficient to say
that any combination of men organized here to go to Cuba to make
war upon its government, provided with arms and ammunition, we
being at peace with Cuba, constitutes a military expedition. It is
not necessary that the men shall be drilled, put in uniforms, or
prepared for efficient service, nor that they shall have been
organized as, or according
Page 163 U. S. 640
to the tactics or rules which relate to, what is known as
infantry, artillery, or cavalry. It is sufficient that they shall
have combined and organized here to go there and make war on the
foreign government, and have provided themselves with the means of
doing so. I say 'provided themselves with the means of doing so'
because the evidence here shows that the men were so provided.
Whether such provision, as by arming, etc., is necessary need not
be decided in this case. I will say, however, to counsel, that were
that question required to be decided, I should hold that it is not
necessary."
"Nor is it important that they intended to make was as an
independent body or in connection with others. Where men go without
combination and organization to enlist as individuals in a foreign
army, they do not constitute such military expedition, and the fact
that the vessel carrying them might carry arms as merchandise would
not be important."
Taking up defendants' thirteen points, the court disposed of
them as follows:
"1. It is not a crime or offense against the United States under
the neutrality laws of this country for individuals to leave this
country with intent to enlist in foreign military service; nor is
it an offense against the United States to transport persons out of
this country and to land them in foreign countries when such
persons have an intention to enlist in foreign armies."
"As a general proposition, this is true, and the point is
affirmed."
"2. It is no offense against the laws of the United States to
transport arms, ammunition, and munitions of war from this country
to any other foreign country, whether they are to be used in war or
not; that in such case the shipper and transporter of the arms,
ammunition, and munitions of war only run the risk of the capture
and seizure of such arms and contraband of war by the foreign power
against whom they are intended to be used; but this does not make
it an offense against the laws of the United States, and for such
cause the defendants cannot be held guilty."
"This is also true. No military expedition would exist in such
case. "
Page 163 U. S. 641
"3. That it is no offense against the laws of the United States
to transport persons intending to enlist in foreign armies and arms
and munitions of war on the same ship; that in such case, the
persons transported and the shipper and transporter of the arms run
the risk of seizure and capture by the foreign power against whom
the arms were to be used, and against whom the persons and
passengers intended to enlist, but such cause did not constitute an
offense against the laws of the United States, and for such cause
the defendants cannot be found guilty."
"This is true provided the persons referred to herein had not
combined and organized themselves in this country to go to Cuba,
and there make war on the government. If they had so combined and
organized, and yet intended when they reached Cuba to join the
insurgent army, and thus enlist in its service, and the arms were
taken along for their use, they would constitute a military
expedition as before described, and the transportation of such body
of persons from this country for such a purpose would be an offense
against the statute."
"The fourth, fifth, sixth, seventh, eighth, and ninth points are
fully answered by what has been said."
"10. Even if the jury do find that the men taken on board were
an organized military force, with officers, as infantry, cavalry,
or artillery, the jury cannot find the defendants guilty unless the
jury also find that the defendants knew that they were such a
military organization as infantry, cavalry, or artillery,
constituting a military expedition or enterprise against the
Kingdom of Spain."
"As before stated, to justify conviction of the defendants, the
jury must be fully satisfied that the defendants knew that the men
constituted a military expedition such as I have described."
"The eleventh point has been fully answered by what the court
has said."
"The twelfth point is a very important point, and is as
follows:"
"12. If the jury find that when the defendants left
Philadelphia,
Page 163 U. S. 642
and until after they had passed beyond the jurisdiction of the
United States, they were ignorant of the fact that they were to
transport the men in question, with their arms and provisions, and
find that the point off Barnegat where the men in question were
taken aboard was beyond the jurisdiction of the United States -- in
other words, beyond the three-mile limit -- and find that the
vessel was sailing under a Danish flag, then and in that case they
will find the defendants not guilty."
"This point raises the question whether the defendants committed
an offense against the statute if the only aid which they furnished
the expedition was furnished out at sea, beyond the jurisdiction of
this country, and I instruct you that if the only aid furnished the
vessel, being a foreign vessel, was so beyond our jurisdiction,
they did not commit an offense, and must consequently be acquitted.
They allege that the point off Barnegat where the men were taken on
board was not within three miles of our shore. If this is true, and
the defendants did not start from our shore under an agreement to
provide the means for transporting and to transport the men, but
were ignorant of the object of going to Barnegat until they reached
there, they cannot be convicted."
"If, however, they entered into an arrangement here to furnish
and provide the means of transportation, and provided it, they are
guilty, if this was a military expedition, although the men were
not taken aboard and the transportation did not commence until the
ship anchored off Barnegat."
"13. It is the duty of the government to satisfy the jury beyond
a reasonable doubt that the men and arms and ammunition taken on
board the steamship
Horsa was a military expedition or
enterprise from the United States against the Kingdom of Spain, and
also that the defendants knew or shut their eyes to the fact that
it was a military expedition or enterprise from the United States
against the Kingdom of Spain, and if the jury have from the
testimony any reasonable doubt upon either of these questions or
facts, the jury will find the defendants not guilty. "
Page 163 U. S. 643
"This point is affirmed. I trust the jury understand it. To
convict the defendants, it is necessary that the government shall
have satisfied your minds beyond a reasonable doubt that this was a
military enterprise, and that the defendants, when they started,
knew it; otherwise, they are not guilty."
The court then further recapitulated and commented on the
evidence, and, in the course of doing so, said:
"Some of them who were able to speak English declared that they
were Cubans going to Cuba to fight the Spanish, and if these men
were in combination to do an unlawful act, what was said by any of
them at the time in carrying out their purpose was evidence against
them all as to the nature of the expedition. . . ."
"That this was a military expedition, designed to make was
against the government of Spain, would seem to the court to be free
from reasonable doubt. The question, however, is one for your
determination alone, and I submit it to you as such, reminding you
that the responsibility of deciding it rests upon you only. If you
find that this was not a military expedition, or, rather, if you
are not fully satisfied that it was, your verdict will be for the
defendants, without going further. If, on the other hand, you find
that it was a military expedition intended to make war against the
government of Cuba, then you must pass upon the second question
stated, to-wit: did the defendants, with knowledge of the facts,
aid in carrying out its purpose in going to Cuba? They transported
the men with their arms, ammunition, and provisions. Did they enter
upon this service here with the knowledge of the fact that the men
constituted a military expedition, to fight against the government
of Cuba? . . . From this and any other testimony bearing on this
subject, you must determine whether they understood what the
expedition and its objects were, and had arranged and provided for
its transportation, when they left Philadelphia or left our shores
within the three-mile limit stated. If they were ignorant on this
subject until they anchored off Barnegat Light, the point being,
according to the testimony, beyond the jurisdictional limits of the
United States,
Page 163 U. S. 644
no offense was committed, as I have before stated, against the
laws of this country."
"The question therefore is did the defendants understand they
were to carry this expedition, and had provided for it, and
understand what the expedition was, before leaving here? As you
have seen, they took on two extra boats before starting, and
cleared for Port Antonio, Jamaica, and turned off of their course
at the breakwater (the captain explaining this, to which
explanation you will give whatever weight you deem it to be worth).
When the men came to the ship off of Barnegat, there is no evidence
that the captain or any one of the defendants expressed or
exhibited any surprise. It was then manifest that the service
required was to carry men and arms to Cuba (the captain says he
then so understood it) -- a most hazardous undertaking. Is it
probable that the defendants would have risked themselves and their
ship in this service if they had not been prepared for it by
previous arrangement, and have done it without demurring or
hesitating? Again, is it likely that those in charge of the
expedition would have risked bringing the men and the property to
that point on the mere chance that the defendants would take the
risk of carrying them and the property to Cuba without arranging
for it beforehand? If the defendants had refused, as it was their
right to refuse (and it would seem certain or at least extremely
probable that they would refuse this most hazardous service if
previous arrangement had not been made), what would have been the
situation of the men and the property? The expedition would have
failed. The men would have been subject to arrest, and the property
to sacrifice. Is it probable that those in charge of such an
enterprise would take the men and property to this point without
having secured certain means of transportation for it in advance?
The captain says he was ignorant of the service required of him
until he reached the point near Barnegat. You must judge whether he
should be believed or not, and, from all the evidence, must
determine whether the defendants left here with knowledge of and
provision for what they were about to do."
"I now submit the case to you, reminding you of its
importance.
Page 163 U. S. 645
If the evidence of the defendants' guilt is not entirely clear,
they should be acquitted. If it is thus clear, they should
certainly be convicted. No sympathy or prejudice must be allowed to
influence your minds in passing on this case. We have nothing to do
with the controversies between the people of Cuba and the
government of that island. We are concerned only with the execution
of the law in this case. We have only to consider whether the
statute to which your attention has been called has been violated.
It is our duty to see that the law is honestly and justly executed
-- that is all. The peace and safety of the community so manifestly
depend upon the faithful and honest administration of the law that
no man can fail to see it. We are suffering today, as probably no
other people suffers, from lawlessness, from mobs, lynch law,
murder, violation of trusts, as the result of want of faithfulness
in executing the law."
"You will take the case, and decide it, with a careful regard to
the rights of the defendants."
73 F. 159.
No motion or request was made that the jury be instructed to
find for defendants or either of them.
Defendants excepted "to that part of the charge of the court
giving the definition of a military expedition;" to the refusal of
the court "to read the points that were not read to the jury," "to
affirm all the points without qualification," and "to affirm each
point without qualification;" to "the statement of the court that,
in its opinion, this was a military expedition," and "that the men
were armed;" to "the failure of the court to comment on the
evidence on behalf of the defendants;" to the statements "of the
court in reference to the reasons, motives, purposes, and acts of
the defendants," "that the defendants did not express surprise that
the men came on the vessel off Barnegat," and "that the
declarations of the men on the ship to the witnesses for the
government were evidence against the defendants;" also, to the
statements
"that even if an agreement to furnish and provide the means of
transportation was made within the jurisdiction of the United
States to carry on a military expedition, which was not consummated
until they got outside of the three-mile
Page 163 U. S. 646
limit, that constituted an offense against the laws of the
United States,"
and "that the acts and declarations of the Cubans themselves
were evidence against them all as to the nature of the
expedition."
The motion in arrest was based on the alleged want of
jurisdiction of the court. Errors were assigned to the giving,
refusing, and qualification of instructions, to the admission in
evidence of declarations of some of the party, during the voyage,
as to their destination, and to the overruling of defendants'
motion in arrest of judgment, for want of jurisdiction.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
Title LXVII of the Revised Statutes, headed "Neutrality,"
embraces eleven sections, from 5281 to 5291, inclusive. Section
5281 prohibits the acceptance of commissions from a foreign power
by citizens of the United States within our territory to serve
against any sovereign with whom we are at peace. Section 5282
prohibits any person from enlisting in this country as a soldier in
the service of any foreign power and from hiring or retaining any
other person to enlist or to go abroad for the purpose of
enlisting. Section 5283 deals with fitting out and arming vessels
in this country in favor of one foreign power as against another
foreign power with which we are at peace. Section 5284 prohibits
citizens from the fitting out or arming, without the United States,
of vessels to cruise against citizens of the United States, and
section 5285, the augmenting of the force of a foreign vessel of
war serving against a friendly sovereign. Sections 5287 to 5290
provide for the enforcement of the preceding sections, and section
5291, that the provisions set forth shall not be construed to
prevent the enlistment of certain foreign citizens in the United
States.
Page 163 U. S. 647
Section 5286 is as follows:
"Every person who, within the territory or jurisdiction of the
United States, begins, or sets on foot, or provides or prepares the
means for, any military expedition or enterprise, to be carried on
from thence against the territory or dominions of any foreign
prince or state, or of any 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 exceeding three thousand
dollars, and imprisoned not more than three years."
This section was originally section five of an Act approved June
5, 1794, 1 Stat. 381, c. 50, carried forward as section 6 of an Act
of April 20, 1818, 3 Stat. 347, c. 88, and differs therefrom in no
respect material here. The language of the section closely follows
the recommendation of President Washington in his annual address
December 3, 1793, when he said:
"Where individuals shall . . . enter upon military expeditions
or enterprises within the jurisdiction of the United States, . . .
these offenses cannot receive too early and close an attention, and
require prompt and decisive remedies."
Annals 3d Cong. 1793-95, p. 11. The legislation is historically
considered in Dana's Wheaton, § 439, note. The statute was
undoubtedly designed, in general, to secure neutrality in wars
between two other nations, or between contending parties recognized
as belligerents, but its operation is not necessarily dependent on
the existence of such state of belligerency. 13 Ops.Attys.Gen. 177,
178. Section 5286 defines certain offenses against the United
States and denounces the punishment therefor, but, although a penal
statute, it must be reasonably construed, and not so as to defeat
the obvious intention of the legislature.
United States v.
Lacher, 134 U. S. 624,
134 U. S.
628.
The offense is defined disjunctively as committed by every
person who, within our territory or jurisdiction, "begins, or sets
on foot, or provides or prepares the means for, any military
expedition or enterprise, to be carried on from thence."
This indictment charged that defendants did "begin, set on
Page 163 U. S. 648
foot, and provide and prepare the means for, a certain military
expedition and enterprise."
Defendants' counsel did not seek to compel an election nor in
any manner, by their motion in arrest or otherwise, to raise the
question of duplicity, nor do they now make objections to the
proceedings on this ground. The district judge instructed the jury
that the evidence would not justify a conviction "of anything more
than providing the means for or aiding such military expedition by
furnishing transportation for their men, their arms, baggage," etc.
Under these circumstances, the verdict cannot be disturbed on the
ground that more than one offense was included in the same count of
the indictment, but it must be applied to the offense to which the
jury were confined by the court.
Crain v. United States,
162 U. S. 625.
We think that it does not admit of serious question that
providing or preparing the means of transportation for such a
military expedition or enterprise as is referred to in the statute
is one of the forms of provision or preparation therein denounced.
Nor can there be any doubt that a hostile expedition dispatched
from our ports is within the words "carried on from thence." The
officers of the
Horsa were concerned in providing the
means of transportation.
1. The first and the main question in the present case is
whether the trial judge erred in his instructions to the jury in
respect of what constitutes a "military expedition or enterprise"
under the statute. The question is one of municipal law, and the
writers on international law afford no controlling aid in its
solution. They deal principally with the status of belligerents and
the rights and obligations of neutral nations when the existence of
such a status is formally recognized or accepted as existing
de
facto.
Calvo defines a military expedition as being an armed enterprise
against a country, and he gives the expedition of Xerxes as an
illustration. Dict. de Droit Int., verbo "Expedition
Militaire."
Professor Lawrence (Prin.Int.Law, 1895, p. 508) is quoted by
counsel to the effect that, to constitute a warlike expedition,
Page 163 U. S. 649
"it must go forth with a present purpose of engaging in
hostilities, it must be under military or naval command, and it
must be organized with a view to proximate acts of war. But it need
not be in a position to commence fighting the moment it leaves the
shelter of neutral territory; nor is it necessary that its
individual members should carry with them the arms they hope soon
to use. When a belligerent attempts to organize portions of his
combatant forces on neutral soil or in neutral waters, he commits
thereby a gross offense against the sovereignty of the neutral
government, and probably involves it in difficulties with the other
belligerent, who suffers in proportion to his success in his
unlawful enterprise."
In Hall's Rights and Duties of Neutrals, § 22, it is said:
"In the case of an expedition being organized in and starting
from neutral ground, a violation of neutrality may take place
without the men of whom it is composed being armed at the moment of
leaving. . . . On the other hand, the uncombined elements of an
expedition may leave a neutral state in company with one another,
provided they are incapable of proximate combination into an
organized whole."
Boyd, in his edition of Wheaton's International Law, §
439
aa, says:
"It is impossible to lay down any hard and fast line separating
commercial transactions in munitions of war and the organizing of
hostile expeditions. International law is necessarily incapable of
being defined and laid down with the precision attainable by
municipal law. The question is one of intent, and it is the duty of
a neutral government to exercise due diligence in ascertaining what
the real character of the transaction may be. The elements of a
hostile expedition are thus described by Professor Bernard:"
"If at the time of its departure, there be the means of doing
any act of war -- if those means, or any of them, have been
procured and put together in the neutral port -- and if there be
the intention to use them (which may always be taken for granted
when they are in the hands of the belligerents), the neutral port
may be justly said to serve as a base or point of departure for a
hostile expedition,"
"Montague Bernard, Neutrality of Great Britain, p. 399. "
Page 163 U. S. 650
But this statute is to be construed as other domestic
legislation is, and its meaning is to be found in the ordinary
meaning of the terms used. The definitions of the lexicographers
substantially agree that a military expedition is a journey or
voyage by a company or body of persons, having the position or
character of soldiers, for a specific warlike purpose; also the
body and its outfit, and that a military enterprise is a martial
undertaking, involving the idea of a bold, arduous, and hazardous
attempt. The word "enterprise" is somewhat broader than the word
"expedition," and although the words are synonymously used, it
would seem that, under the rule that its every word should be
presumed to have some force and effect, the word "enterprise" was
employed to give a slightly wider scope to the statute.
The phrase "military expedition or enterprise" has been
variously construed by the district courts, but apparent
differences in expression may be largely attributable to the
differences in the facts under consideration in the particular
case.
In
United States v. O'Sullivan, 2 Whart.Crim.Law, §
2802, note, Judge Judson charged the jury that, before they
could
"convict on this indictment, it must be proved to their
satisfaction that the expedition or enterprise was in its character
military, or, in other words, it must have been shown by competent
proof that the design, the end, the aim, and the purpose of the
expedition or enterprise was some military service, some attack or
invasion of another people or country, state, or colony as a
military force. . . . But any expedition or enterprise in matters
of commerce, or of business of a civil nature, unattended by a
design of an attack, invasion, or conquest is wholly legal, and is
not an expedition or an enterprise within this act. . . . The term
'expedition' is used to signify a march or voyage with martial or
hostile intentions. The term 'enterprise' means an undertaking of
hazard -- an arduous attempt."
Judge Maxey, in
United States v. Ybanez, 53 F. 536,
concurred in this view, and further said:
"This statute does not require any particular number of men to
band together to constitute the expedition or enterprise one of a
military
Page 163 U. S. 651
character. There may be divisions, brigades, and regiments, or
there may be companies or squads of men. Mere numbers do not
conclusively fix and stamp the character of the expedition as
military or otherwise. A few men may be deluded with the belief of
their ability to overturn an existing government or empire, and,
laboring under such delusion, they may enter upon the enterprise. .
. . The proof must establish in your minds the fact that the
expedition or enterprise was of a military character, and when the
evidence shows that the end and object were hostile to or forcible
against the Republic of Mexico, then it would be, to all intents
and purposes, a military expedition. . . . Evidence showing that
the end and objects were hostile to or forcible against a nation at
peace with the United States characterizes it, to all intents and
purposes, as a military expedition or enterprise."
Judge Brawley, in
United States v. Hughes, 75 F. 267,
applied the test suggested by Mr. Hall as to capability of
proximate combination of the uncombined elements of an expedition
into an organized whole, and he said in reference to the passengers
in that case:
"But if, after they got aboard, they took the arms from the
boxes, and organized into a company or organization, if they were
drilled or went through the manual of arms under the leadership or
direction of one man or more, if they themselves became a military
organization by reason of such coming together and of such drill or
instruction, then, from that time forth, they would be a military
organization or enterprise, within the moaning of this
statute."
In
United States v. Pena, 69 F. 983, Judge Wales, and
in
United States v. Hart, 74 F. 724, not yet reported,
Judge Brown, of the Southern District of New York, considered the
statute as exacting a high degree of organization, but Judge Brown
said:
"I do not say that in order to constitute a military expedition
to be 'carried on from this country,' as the statute reads, it must
be complete at the start, or possess all the elements of a military
body. It is sufficient if there was a combination by the men for
that purpose, with the agreement and
Page 163 U. S. 652
the intention of the body that embarks that it should become a
military body before reaching the scene of action. Such a
combination and agreement, if means for effecting it were provided,
followed by embarkation in pursuance of the agreement, would show
such a partial execution of the design on our soil as to bring the
case within our statute, as 'a military enterprise begun and
carried on from the United States.'"
It is argued that as persons are not prohibited from going
abroad for the purpose of enlisting in the service of a foreign
army, and as the transportation of arms, ammunition, and munitions
of war from this country to any other foreign country is not
unlawful, 3 Whart.Int.Law Dig. § 388
et seq.; The Itata,
56 F. 505, and authorities cited, therefore no offense was
committed in the transportation of these men, the arms and
munitions, and reference is made to an opinion of Mr. Secretary
Fish on this subject, during the Franco-German war of 1870. A
statement of that matter is given in Hall's Rights and Duties of
Neutrals § 222, and in a letter of Sir Edward Thornton to Lord
Granville dated September 26, 1870, 61 State Papers, 1870-71, p.
822, and elsewhere. It seems to have been an informal communication
to the Prussian minister, who had complained of the fact that the
transatlantic steamer
Lafayette was carrying a large cargo
of arms and ammunition for sale to the French, while at the same
time she was carrying several hundred French passengers, all of
whom, as was generally supposed, intended to enlist in the army of
France on their arrival. These passengers, however, appear to have
been all traveling as individuals, without any concert of action,
and they had no access to the arms and ammunition, any more than an
ordinary passenger on an ocean steamer has access to any part of
the cargo. Sir Edward Thornton wrote that
"Mr. Fish replied to the district attorney that he was to be
guided by the neutrality laws of the United States, and that with
regard to the ship it could not be alleged that she was intended
for hostile purposes against North Germany. As for the arms and
ammunition, they were articles of a legitimate commerce, with which
the United States would not interfere, although the vessel
might
Page 163 U. S. 653
run the risk of being detained by the cruisers of North Germany
on her voyage to France."
The district judge ruled nothing to the contrary, and charged
the jury in this case that it was not a crime or offense against
the United States under the neutrality laws of this country for
individuals to leave the country with intent to enlist in foreign
military service, nor was it an offense against the United States
to transport persons out of this country and to land them in
foreign countries when such persons had an intent to enlist in
foreign armies; that it was not an offense against the laws of the
United States to transport arms, ammunition, and munitions of war
from this country to any foreign country, whether they were to be
used in war or not, and that it was not an offense against the laws
of the United States to transport persons intending to enlist in
foreign armies and munitions of war on the same trip. But he said
that if the persons referred to had combined and organized in this
country to go to Cuba, and there make war on the government, and
intended, when they reached Cuba, to join the insurgent army, and
thus enlist in its service, and the arms were taken along for their
use, that would constitute a military expedition and the
transporting of such a body from this country for such a purpose
would be an offense against the statute. The judge also charged the
jury as follows:
"In passing on the first question, it is necessary to understand
what constitutes a military expedition, within the meaning of this
statute. For the purposes of this case, it is sufficient to say
that any combination of men organized here to go to Cuba to make
war upon its government, provided with arms and ammunition (we
being at peace with Cuba), constitutes a military expedition. It is
not necessary that the men shall be drilled, put in uniform, or
prepared for efficient service, nor that they shall have been
organized as or according to the tactics of rules which relate to
what is known as infantry, artillery, or cavalry. It is sufficient
that they shall have combined and organized here to go there and
make war on a foreign government, and to have provided themselves
with
Page 163 U. S. 654
the means of doing so. I say 'provided themselves with the means
of doing so' because the evidence here shows that the men were so
provided. Whether such provision, as by arming and so forth, is
necessary need not be decided in this case. I will say, however, to
counsel that were that question required to be decided, I should
hold that it is not necessary."
"Nor is it important that they intended to make war as an
independent body or in connection with others. Where men go without
combination and organization to enlist as individuals in a foreign
army, they do not constitute such military expedition, and the fact
that the vessel carrying them might carry arms as merchandise would
not be important."
It appears to us that these views of the district judge were
correct as applied to the evidence before him. This body of men
went on board a tug loaded with arms, were taken by it thirty or
forty miles and out to sea, met a steamer outside the three-mile
limit by prior arrangement, boarded her with the arms, opened the
boxes, and distributed the arms among themselves, drilled to some
extent, were apparently officered, and then, as preconcerted,
disembarked to effect an armed landing on the coast of Cuba. The
men and the arms and ammunition came together. The arms and
ammunition were under the control of the men. The elements of the
expedition were not only "capable of proximate combination into an
organized whole," but were combined or in process of combination.
There was concert of action. They had their own pilot to the common
destination. They landed themselves and their munitions of war
together by their own efforts. It may be that they intended to
separate when they reached the insurgent headquarters, but the
evidence tended to show that until that time, they intended to
stand together, and defend themselves if necessary. From that
evidence the jury had a right to find that this was a military
expedition or enterprise under the statute, and we think the court
properly instructed them on the subject. This conclusion disposes
of most of the errors assigned to the instructions given,
qualified, or refused. Some of the points requested on defendants'
behalf were incorrect; some were covered by the general charge, and
others were properly qualified.
Page 163 U. S. 655
2. The second material question is whether, if a military
expedition or enterprise was made out, the court erred in its
instructions in respect of defendants' knowledge or notice of the
facts. And this involves the jurisdictional question which is
raised by the exception to the qualification of the twelfth point.
In that qualification and elsewhere, the district judge
specifically and clearly instructed the jury that although this was
a military expedition or enterprise, nevertheless the defendants
were not criminally responsible unless they were aware of its
nature before they sailed from Philadelphia. "To convict the
defendants," said the district judge,
"it is necessary that the government shall have satisfied your
minds beyond a reasonable doubt that this was a military
enterprise, and that the defendants when they started knew it;
otherwise, they are not guilty. . . . The question therefore is did
the defendants understand that they were to carry this expedition,
and had provided for it, and understand what the expedition was
before leaving here [Philadelphia]?"
It is true that the expedition started in the Southern District
of New York, and did not come into immediate contact with
defendants at any point within the jurisdiction of the United
States, as the
Horsa was a foreign vessel, but the
Horsa's preparation for sailing and the taking aboard of
the two boats at Philadelphia constituted a preparation of means
for the expedition or enterprise, and if defendants knew of the
enterprise when they participated in such preparation, then they
committed the statutory crime upon American soil and in the Eastern
District of Pennsylvania, where they were indicted and tried.
The jurisdictional point was again presented by the motion in
arrest, but its disposition calls for no further observations.
We repeat that on the second material question -- namely,
whether the defendants aided the expedition with knowledge of the
facts -- the jury were instructed that they must acquit unless
satisfied beyond reasonable doubt that defendants, when they left
Philadelphia, had knowledge of the expedition and its objects and
had arranged and provided for its transportation.
Page 163 U. S. 656
We hold that defendants have no adequate ground of complaint on
this branch of the case.
3. An exception was taken to the statement of the court that the
men were armed. The court said: "They were armed, having rifles and
cannon, and were provided with ammunition and other supplies." This
statement was based on uncontradicted testimony, and occurring as
it did in a recapitulation of the evidence, no rule of law being
incorrectly stated, and the matters of fact being specifically
submitted to the determination of the jury, we do not regard the
exception as tenable.
Baltimore & Potomac Railroad v. Fifth
Baptist Church, 137 U. S. 568,
137 U. S.
574.
4. Objection is also made because the court expressed its
opinion that this was a military expedition. But what the court
said was that this
"would seem to the court to be free from reasonable doubt. The
question, however, is one for your determination alone, and I
submit it to you as such, reminding you that the responsibility of
deciding it rests upon you only. If you find that this was not a
military expedition, or rather if you are not fully satisfied that
it was, your verdict will be for defendants without going
further."
Clearly the observation of the court thus guarded did not so
trespass on the province of the jury as to constitute reversible
error.
Simmons v. United States, 142 U.
S. 148,
142 U. S. 155.
5. Again it urged that the court erred, when referring to the
captain's testimony that "he was ignorant of the service required
of him until he reached the point near Barnegat," in saying:
"You must judge whether he should be believed or not, and from
all the evidence must determine whether the defendants left here
with the knowledge of, and provision for, what they were about to
do."
No exception was taken to this part of the charge, but if there
had been, we cannot say that the trial judge was not justified in
that remark in view of all the facts and circumstances.
Nor was any exception taken to the closing observations by the
court as to the importance of faithfulness in the execution of the
law, although they are now assigned for error. We see
Page 163 U. S. 657
in them nothing which could properly be regarded as prejudicial
to the defendants.
6. Other assignments of error relate to the admissibility of
declarations of members of the party during the voyage as to their
destination. One of the witnesses for the prosecution testified on
cross-examination "that he had spoken to a couple of those young
fellows there, and they said they were going to Cuba." On redirect
examination he was asked: "Did they tell you where they were
going?" The answer, which was objected to, was: "They told me they
were going to Cuba. They did not say what they were going to do."
It was uncontroverted in the case that the party meant to go, and
did go, to Cuba, and the evidence was not material. Another witness
for the government was asked:
"Q. Did you have any talk with any of those men? [Objected to,
unless it was in the presence of these defendants. Objection
overruled. Exception by defendants.]"
"A. Yes, sir; I was going in the forecastle one night, and he
told us, 'I go down to Cuba to fight.'"
"Q. To fight who?"
"A. The Spanish."
There was no objection to the second question or to either
answer, and no motion to strike out. It does not appear who made
the statement or how many persons were present or that defendants
were not present. These assignments are without merit.
There was other evidence of declarations of members of the party
as to their purposes, and the district judge, in commenting
thereon, said that
"if these men were in combination to do an unlawful act, what
was said by any of them at the time in carrying out their purpose
was evidence against them all as to the nature of the
expedition,"
and to this an exception was taken. The general rule was stated
in
American Fur Co. v. United
States, 2 Pet. 358,
27 U. S. 365,
by Mr. Justice Washington, speaking for the Court, that
"where two or more persons are associated together for the same
illegal purpose, any act or declaration of one of the parties, in
reference to the common object, and forming a part of the
res
gestae, may be given in evidence against the others."
The declarations must be made in furtherance of the common
object, or must constitute a part
Page 163 U. S. 658
of the
res gestae of acts done in such furtherance.
Assuming a secret combination between the party and the captain or
officers of the
Horsa had been proven, then, on the
question whether such combination was lawful or not, the motive and
intention, declarations of those engaged in it explanatory of acts
done in furtherance of its object, came within the general rule,
and were competent.
St. Clair v. United States,
154 U. S. 134;
People v. Davis, 56 N.Y. 102;
Lincoln v.
Claflin, 7 Wall. 132,
74 U. S. 139; 1
Greenl.Ev. § 111; Starkie, Ev. 466.
The extent to which evidence of this kind is admissible is much
in the discretion of the trial court, and we do not consider that
that discretion was abused in this instance.
Clune v. United
States, 159 U. S. 590,
159 U. S.
592.
7. No motion or request was made that the jury be instructed to
find for defendants, or either of them. Where an exception to a
denial of such a motion or request is duly saved, it is open to the
court to consider whether there is any evidence to sustain the
verdict, though not to pass upon its weight or sufficiency. And
although this question was not properly raised, yet if a plain
error was committed in a matter so absolutely vital to defendants,
we feel ourselves at liberty to correct it.
The
Horsa was bound for Jamaica, and her course carried
her along the coast of Cuba for about six hours. She took on board
at Philadelphia two boats entered on the manifest as for Port
Antonio, but intended for, and ultimately devoted to the use of,
the party she transported. The captain received at the wharf
written instructions, which he did not produce on the trial, and
says he did not keep when he left the vessel, but in accordance
with which he went north off Barnegat, anchored outside the
three-mile limit, and awaited orders. The inference was not
unjustifiable that he was thus and then informed that safety
required that whatever was to take place off Barnegat should take
place beyond the jurisdiction of the United States; in other words,
that a transgression of the laws of the United States was
contemplated. The
Horsa was boarded on the high seas off
Barnegat, as heretofore described, and the captain testified that
he did not regard the occurrence
Page 163 U. S. 659
as anything unusual or important. But the firemen said that they
went to the chief engineer when these men came aboard and told him
they would not go along. "We won't go down there and get shot." "We
did not sign for that." The chief engineer bade them keep quiet,
and the captain "told them, if anybody had to hang for this, I
would be the man to hang for it. I told them they had better go
below and mind their own business." The written instructions the
captain there received were not produced, but he said he was to
take the men and whatever they had and let them off when told to do
so, delivering the two boats shipped at Philadelphia, and the two
shipped from the tug, to them as soon as called for, and that this
did not strike him as singular. The evidence shows that the nature
of the enterprise was apparent at this time, and the jury may not
unreasonably have inferred that the captain received the men and
their arms, entered upon the hazards of the voyage, and quieted the
complaints of the firemen, with an equanimity springing from a mind
previously made up on the subject. We deem it unnecessary to go
over the evidence. We cannot say as matter of law that there was no
evidence tending to sustain the verdict against the captain.
But we think the case as to Petersen and Johansen stands on
different ground, and that we may properly take notice of what we
believe to be a plain error, although it was not duly excepted.
These men were the mates of the vessel, and they proceeded on the
voyage under the captain's orders. This would not excuse them if
there were proof of guilty knowledge or participation on their part
in assisting a military expedition or enterprise when they left
Philadelphia. We are of opinion that adequate proof to that effect
is not shown by the record, and that, as the case stood, the jury
should have been instructed to acquit them. The captain testified
that the mates
"had nothing to do with this ship or with its business. They
listened to my orders. They were under my orders. I was the master
of that vessel. I am responsible for all that was done."
The order he received to go north and await orders beyond the
three-mile limit does
Page 163 U. S. 660
not appear to have been communicated to them, and, whatever they
must have known after the
Horsa was boarded off Barnegat,
there is nothing sufficiently justifying a presumption of knowledge
when the vessel left the wharf.
It is not necessary to enlarge upon the public importance of the
neutrality laws. This case is a criminal case, arising on an
indictment under a section of the Revised Statutes, and we dispose
of it on what we deem to be the proper construction of that
section, and after subjecting the correctness of the rulings of the
court below to that careful examination which the discharge of our
duty requires.
The judgment against defendant Wiborg is affirmed; the
judgment against defendants Petersen and Johansen is reversed, and
the cause remanded, with instructions to set aside the verdict and
grant a new trial as to them.
MR. JUSTICE HARLAN, dissenting.
I concur with my brethren in holding that the judgment against
Petersen and Johansen should be reversed, and a new trial ordered
as to them.
But I am of opinion that the judgment against Wiborg should also
be reversed. It is conceded that the men on the tug were received
on board the
Horsa at a point off Barnegat -- which was
more than three miles from our shore. It is clear from the evidence
that at the time his vessel left Philadelphia, and previous to his
receiving those men on board, Wiborg had no knowledge of the
purpose for which the charterer ordered him, after he passed the
breakwater, "to proceed north near Barnegat and wait further
orders." The movements of the vessel were under the control of the
charterer. Wiborg was under no legal obligation to inquire from the
charterer why the
Horsa was ordered to that point, or what
were the orders he was likely to receive after arriving there. His
duty was to obey the orders of the charterer unless such orders
obviously contemplated a breach of the laws of this country. The
only evidence in the case bearing upon the question whether Wiborg
knew, when he left Philadelphia, of
Page 163 U. S. 661
any arrangement for his vessel, after it passed beyond the
territory and jurisdiction of the United States, to receive men
destined for Cuba, was that given by himself. And he distinctly
swore that when he started from Philadelphia, he did not know that
"we were going to take these people and their goods on the
Horsa." There was not the slightest ground in the evidence
to suppose that he ever had any communication with those people, or
that he ever saw them, before they came on his vessel. Those
persons had, of course, arranged with the charterer for passage on
the
Horsa. But the charterer did not communicate the fact
of such an arrangement to the captain of the vessel while lie was
within the territory and jurisdiction of the United States. The
direction that he should receive the men and their goods on board
came to him from the charterer when he was not within the territory
or jurisdiction of the United States. He cannot therefore be said
to have provided or prepared, "within the territory or jurisdiction
of the United States," any means for the expedition or enterprise
against the territory or dominion of Spain. Under the
interpretation placed upon the statute by the government, the
charterer did provide for such means. But, curiously enough, the
charterer was not indicted. The prosecution is against the officers
of the vessel, no one of whom, according to the proof, had any
knowledge, at the time the
Horsa left Philadelphia, nor
while it was within the jurisdiction of the United States, that the
charterer had arranged that the vessel, after it got beyond the
jurisdiction of the United States, should receive on board
individuals destined for Cuba, and who intended, after they arrived
there, to engage in the struggle to overthrow the' authority of
Spain in that island.
Independently of the view just expressed, this was not, I think,
a military expedition or enterprise within the meaning of the
statute. It had none of the features of such an expedition or
enterprise. There was no commanding officer whose orders were
recognized and enforced. It was, at most, a small company of
persons, no one of whom recognized the authority of another,
although all desired the independence of Cuba and had the purpose
to reach that island and engage
Page 163 U. S. 662
not as a body, but as individuals, in some form in the civil war
there pending -- a loose, unorganized body of very small dimensions
and without any surroundings that would justify its being regarded
as a military expedition or enterprise to be carried on from this
country.
