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The Law of Hostile Military Expeditions as Applied by the United States

Published online by Cambridge University Press:  04 May 2017

Roy Emerson Curtis
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Extract

The manner of the performance of the duty of preventing hostile expeditions, and the means to be employed for that purpose, are matters largely or entirely for the discretion of the individual state. It cannot be said that any particular method is required or sanctioned by international law. This discretion is limited, however, by practical necessity and by the exigency of good faith.

Type
Research Article
Information
American Journal of International Law , Volume 8 , Issue 2 , April 1914 , pp. 224 - 255
Copyright
Copyright © American Society of International Law 1914

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References

85 Formerly it was not the custom to embody international obligations in legislation. The present practical necessity of this is, however, apparent. Arbitrary executive repression of individual conduct is very limited under the constitutional systems of modern governments. It has, therefore, now become almost imperative as a matter of internal administration. The performance of its duty to other states would be a practical impossibility for the United States in the absence of statutory regulations.

The practical necessity for legislation must not be confused, on the other hand, with legal requirement. The statutory law concerning expeditions is primarily a matter of domestic regulation. In so far as it deals with the means of preventing hostile enterprises, another state may not prescribe its provisions. If it enacts a prohibition against certain individual conduct, it defines only an offense at municipal law, as to which a foreign government may not inquire. Since the international offense is distinct from the municipal, it is entirely independent of the existence of any domestic law. This law cannot, therefore, be required as a matter of legal right. (7 Op. At. Gen. 367).

86 For examples of such proclamations, see Richardson’s Messages, I, 157, 404, 561; III, 482; IV, 72; V, 7, 111, 271, 272, 388, 496; VI, 433; VII, 85, 91; IX, 591, 694.

87 MS. Notes to Great Britain, XIX, 438 (Moore’s Digest, VII, 931).

88 For. Rel. 1893, 442, and 446–447. The United States would not go to the extent of making an “alliance” for such purposes (For. Rel. 1886, 57).

89 For. Rel. 1887, 1027–1029; 1888, I, 990; also 1885, 773.

90 For. Rel. 1887, 1027–1029; 1892, 640–641.

91 For. Rel. 1888, I, 990; 1871, 785, 787.

92 1 American State Papers, For. Rel. 589.

93 For instance, see MS. Dom. Let., Vol. 153, pp. 672 and 673 (Moore’s Digest, VII, 1021).

94 H. Ex. Doc. 73, 25 Cong. 2 Sess. p. 5.

95 For. Rel. 1893, 428.

96 At the time of the Canadian rebellion of 1837, the government employed most of these agencies to prevent attacks on Canada by American citizens. The district attorneys were addressed by the Secretary of State, stating the intention of the government to fulfill its obligations; governors were requested to assist; collectors of customs were instructed to lend their aid; the United States marshals proceeded to the frontier; a revenue cutter was placed at the disposal of the collector to aid in enforcing the law; the militia was called out; and General Scott was placed in command of troops, both regular and volunteer, on the frontier.

97 See Moore’s Digest, VII, 1020 and 1021; For. Rel. 1884, 493; 1885, 773; Richardson’s Messages, VI, 442.

98 See Richardson’s Messages, V, 161; Moore’s Digest, VII, 1020, 1021, 1023; H. Doc. 326, 55 Cong. 2 Sess.

99 See Dip. Corres. 1866, I, 276. Note the use of the army during the Canadian rebellion, supra, note 12; and the concentration of the army on the Mexican frontier, March, 1911.

100 See For. Rel. 1893, 429.

101 Stoughton v. Dimick, 3 Blatchf. 356 (Fed. Cas. 13500).

102 S. Ex. Doc. 13, 35 Cong. 1 Sess. p. 1, 2–3.

103 Following the suspension of Commander Chatard for failure to prevent the landing from the ship Fashion in a port of Nicaragua, of an expedition under the command of “General Walker” Commodore Paulding had landed marines and compelled the surrender of Walker. This action was not upheld by the United States (though it was taken with the consent of Nicaragua), since the landing of marines was an act in violation of the sovereignty of a foreign state.

104 S. Rep. 20, 35 Cong. 1 Sess. p. 8. See also H. Rep. 74.

105 See S. Ex. Doc. 57, 31 Cong. 1 Sess. following p. 54.

106 For. Rel. 1884, 493.

107 The measures taken by these vessels are described in S. Ex. Doc. 57, 31 Cong. 1 Sess. p. 54 et seq.

108 The extraterritorial pursuit of offenders is, no doubt, a proper method of fulfilling the requirement of preventing expeditions. The government is free to take such measures whenever it considers the occasion justifies them. But there is no evidence that this, more than any other measure, is required of the state. The United States has not taken this action on the insistence of other governments, but rather out of abundant caution that it be not delinquent in its international relations. On the general question, see Moore’s Digest, VII, pp. 1045–1049.

109 For. Rel. 1892, 640–641.

110 21 Op. At. Gen. 267, 273.

111 Ibid.

112 Mr. Pickering, Sec. of St., to Mr. Bond, British Chargé, Sept. 30, 1795, 8 MS. Dom. Let. 413 (Moore’s Digest, VII, 1027).

113 MS. Notes to Foreign Legations, II, 337 (Moore’s Digest, VII, 1027).

114 Lloyd’s Trial of Wm. S. Smith and Sam’l G. Ogden (Moore’s Digest, VII, 917).

115 U. S. v. Quitman, 2 Am. Law Reg. 645 (Fed. Cas. 16111).

116 Gill v. Oliver, 11 Howard 529 (quoting the Circuit Court of Appeals of Maryland). See also 14 Howard 38.

117 Richardson’s Messages, V, 113, 115–116.

118 For. Rel. 1899, 364.

119 21 Op. At. Gen. 267.

120 MS. Notes to Arg. Rep., VI, 134 (Moore’s Digest, VII, 1058).

121 “* * * the theory for which this government has contended, and which it is now exerting itself to maintain (is) that a neutral or friendly government is bound to use due diligence to prevent hostile expeditions from being fitted out within its territory, against a power with which it is at peace, and that such obligation of a neutral, or of a friendly, power is not satisfied by throwing upon the power whose peace or whose territories are threatened the burden of the prosecution, or the whole duty of furnishing testimony.

“The position which the United States assumed and has maintained * * * has been that when reasonable grounds were presented to a government by a friendly power for suspicion that its peace is threatened by parties within the jurisdiction of that government, it is the duty of the latter to become the active prosecutor of those threatening the peace of the former.” Mr. Fish, Sec. of St., to Mr. Akerman, At. Gen., Nov. 20, 1871, 91 MS. Dom. Let. 356 (Moore’s Digest, VII, 1056).

122 See also in this connection Chap. III, sec. 3.

123 See Wharton, Criminal Law, sec. 1908.

124 MS. Notes to Cent. Amer., 1, 105 (Moore’s Digest, VII, 926).

125 But the United States enacted a special act in 1838 to meet the situation on the northern boundary.

126 See Papers relating to the Treaty of Washington, IV, 49, SO.

127 21 Op. At. Gen. 267, 271–272.

128 Ibid. See also MS. Notes to Cent. Amer., 1, 105 (Moore’s Digest, VII, 926).

129 For. Rel. 1893, 427.

130 Dip. Corres. 1868, I, 430.

131 For. Rel. 1873, III, 329, 332; Wharton, Int. Law Digest, III, 618.

132 For. Rel. 1893, 426 et seq.

133 Though most of the claims were denied, this sort of settlement is illustrated by the cases submitted to arbitration. See Moore, International Arbitrations, pp. 4028, 4029, 4040, 4042, 4054.

134 For. Rel. 1899, 364.

135 Mr. Webster, Sec. of St., to Mr. Fox, Brit. Min., April 24, 1841, Webster’s Works, VI, 250, 261.

136 American State Papers, For. Rel., IV, 545, 546. See also pp. 539, 541, 215, 496.

137 For. Rel. 1882, 396, and 404–405.

138 For. Rel. 1878, 555–559; 26 Br. and For. St. Papers, 1419 (Moore’s Digest, II, 421).

139 26 Br. and For. St. Papers, 1419 (Moore’s Digest, II, 421).

140 U. S. v. O’Sullivan, 9 N. Y. Leg. Obs. 257 (Fed. Cas. 15974); Charge to Grand Jury, 2 McLean, 1 (Fed. Cas. 18265); Same, 5 McLean, 249 (Fed. Cas. 18266).

141 I Stat. 381 and 497; 2 Stat. 54.

142 See Dana, Notes to Wheaton, No. 215.

143 Message of Dec. 26, 1816, Richardson’s Messages, I, 582.

144 3 Stat. 370 and 447.

145 4 American State Papers, For. Rel. 103.

146 Sections 5281, et seq.

147 Act of March 4, 1909, “An act to codify, revise, and amend the penal laws of the United States.”

148 The present English statute is the Foreign Enlistment Act of 1870, 33 & 34 Vict. c. 90. See Wharton, Crim. Law, sec. 1908, note; also Moore’s Digest, Vol. VII, p. 1005.

149 Moore’s Digest, VII, 917; Boyd, Wheaton, International Law, sec. 439i; Dana’s Wheaton, sec. 439, note; 2 Madison’s Writings, 218, 220.

150 H. Ex. Doc. 74, 25 Cong. 2 Sess.

151 See H. Ex. Docs. 64, 74, 302, 25 Cong. 2 Sess.; 183, 25 Cong. 3 Sess.; 33, 26 Cong. 2 Sess.; 128, 27 Cong. 2 Sess.; H. Rep. 162, 26 Cong. 2 Sess.; S. Ex. Doc. 99, 27 Cong. 3 Sess.; Moore, International Arbitrations, III, 2419, et seq.; Scott’s Autobiography, I, 305–317.

152 Boyd’s Wheaton, sec. 439j.

153 See Moore’s Digest, VII, 924 and 925.

154 See Papers relating to the Treaty of Washington, IV, 301, et seq.; an account of filibustering expeditions in the opinion of Sir A. Cockburn in the Geneva Arbitration. See also S. Ex. Doc. 13, 35 Cong. 1 Sess.

155 Moore, International Arbitrations, III, 4028.

156 Moore, Int. Arb. 4040. But the umpire said: “If the Mexican Government considered that its territory had been violated, it had a right to demand satisfaction for the violation.”

157 Moore’s Digest, VII, 928; Int. Arb. 4042.

158 Moore, Int. Arb. 4042.

159 Ibid., 4029.

160 Papers relating to the Treaty of Washington, IV, 303.

161 Papers relating to the Treaty of Washington, IV, 303.

162 Boyd’s Wheaton, sec. 439k.

163 Moore’s Digest, VII, 1020, contains an account of numerous instances.

164 For. Rel. 1884, 493.

165 Moore’s Digest, VII, 932.

166 For. Rel. 1893, 445–446. See pp. 425–435, 440–448, 456.

167 Ibid., 1899, 364–37.0. See also Moore’s Digest, VII, 1025.

168 Treasury Dept. Doc, No. 1989 (H. Doc. 326, 55 Cong. 2 Sess.).

169 The Lopez expeditions (see Chap. VI, sec. 2) were matters of common report, and the progress of preparations was published from time to time in the daily press.

“The story of all these expeditions as told in a great part in the proclamations of the different Presidents, is pretty much the same. Some scheme of annexation, or other form of invasion is started, public meetings of sympathizers are held, a reckless soldier of fortune is chosen for chief, funds are raised by bonds issued on the security of the public lands of the country it is proposed to conquer, arms are collected, recruits are advertised for under some transparent verbal concealment of the object, and at least a certain number of men are got together, and embark, or otherwise set forth. If the country against which the attack is directed is feeble or unprepared, scenes of outrage and bloodshed follow, until the marauders are driven to the coast, where they find refuge aboard American vessels (in some cases it has been on board ships of war), and return to the protection of the United States, to prepare for a fresh attack. If the country is able vigorously to repel them, as in the case of the Fenian raids, they content themselves with a demonstration on the frontier, seek at once the shelter of their own country, are disarmed, and the ringleaders are perhaps tried. Those who are convicted are almost certain of an immediate pardon. After an interval the arms are restored, and unless the scheme has been so discredited by failure as to be incapable of revival, preparations are forthwith recommenced for another attempt, and everything goes on as before. * * * Laws no doubt have been passed, and proclamations in abundance issued. But in spite of all this, privateering, armed incursions into countries at peace with the United States, hostile raids, and filibustering expeditions have gone on as before.” Sir A. Cockburn, Opinion in the Geneva Arbitration Papers, relating to the Treaty of Washington, IV, 307.

170 For. Rel. 1885, 774.

Much earlier (November 16, 1818) the Spanish minister, Don Luis de Onis, had made the same complaint in connection with privateering: “Whatever may be the forecast, wisdom, and justice conspicuous in the laws of the United States, it is universally notorious that a system of pillage and aggression has been organized in several parts of the union against the vessels and property of the Spanish nation; and it is equally so that all the suits instituted by his Catholic Majesty’s consuls, in the courts of their respective districts, for its prevention, or the recovery of the property, when brought into this country, have been and still are completely unavailing.” Boyd’s Wheaton, sec. 439i.

171 H. Ex. Doc. 74, 25 Cong. 2 Sess.

172 This bibliography contains only the documentary material bearing upon the points included in this study. Most text-writers in international law touch briefly upon some of the questions involved in the discussion in their chapters on “state responsibility” and “neutrality.” To this extent their works will be found to be useful. Beyond this the literature of international law contains nothing important on the subject. The history of some filibustering expeditions has been imperfectly written in certain monographs; but these are of doubtful authority.

Documents and cases marked by an asterisk (*) relate to matters discussed in the introductory chapter, and, therefore, bear only indirectly on the law of hostile expeditions.