See notes under 2914, ante, and 2921, post.

Duty of Government as to military expeditions. The duty of the United States, when a state of war is declared or recognized by another country, is of its own motion to use diligence to discover and prevent within its borders the formation or departure of any military expedition intended to carry on or take part in such war (1895) 21 Op. Atty. Gen. 267.

Statute as creating two offenses. This section creates two offenses: (1) Setting on foot, within the United States, a military expedition, to be carried on against any power, etc., with whom the United States is at peace; (2) providing the means for such an expedition. U. S. v. Hart (D. C. 1897), 78 Fed. 868; judgment affirmed, Hart v. U. S. (1898), 84 Fed. 799, 28 C. C. A. 612.

Meaning of "expedition" and "enterprise." 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 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. Wiborg v. U. S. (1896), 163 U. S. 632, 650.

The sending of only one spy from the United States to England, for the benefit of Germany, then at war with Great Britain, constitutes a "military enterprise," as distinguished from a "military expedition." U. S. v. Sander (D. C. 1917), 241 Fed. 417; see also U. S. v. Chakraberty (D. C. 1917), 244 Fed. 287.

A single individual may violate this section, by providing or preparing the means for a military expedition referred to in the statute. U. S. v. Ram Chandra (D. C. 1917), 254 Fed. 635.

The word " enterprise," as used in this section, means an undertaking of hazard; an arduous attempt. U. S. v. Ybanez (C. C. 1892), 53 Fed. 536.

The phrase "set on foot," as used in this section, means to arrange; place in order; set forward; put in the place of being ready. U. S. v. Ybanez (C. C. 1892), 53 Fed. 536. The word "begin," as used in this section, means to do the first act; to enter on. Id.

Beginning or setting expedition on foot in general. The carrying on from the United States of an expedition against a neutral power is an offense, though the association originated in another country. Ex parte Needham (C. C. 1817), Fed. Cas. No. 10,080.

Any combination of individuals to carry on an expedition is "setting it on foot," within the meaning of the statute, and the contribution of money or anything else which shall induce such combination may be a beginning of the enterprise. Charge to Grand Jury, Neutrality Laws (C. C. 1851), Fed. Cas. No. 18,267.

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Providing and preparing means for expedition. This section applies to the providing or preparing of means of transportation for such an expedition or enterprise. borg v. U. S. (1896), 16 Sup. Ct. 1127, 1133, 163 U. S. 632, 41 L. Ed. 289, modifying judgment U. S. v. Wiborg (D. C. 1896), 73 Fed. 159.

One who provides the means for transporting a military expedition on any part of its journey, with knowledge of its ultimate destination and unlawful character, is punishable under R. S. 5286 (embodied herein). Hart v. U. S. (1898), 84 Fed. 799, 28 C. C. A. 612, affirming U. S. v. Hart (D. C. 1897), 78 Fed. 868.

Providing means for carrying a known military expedition to an island over which the United States has jurisdiction, as one stage of its journey, with knowledge of its final destination, is an offense under the statute. Id.

To constitute the offense of beginning or setting on foot a military expedition against a friendly power, within this section, it is not necessary that the expedition shall be actually set on foot. It is sufficient if such preparations are made for it as show an intent to set it on foot. Charge to Grand Jury, Neutrality Laws (C. C. 1838), Fed. Cas. No. 18,265.

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To "provide or prepare the means for any military expedition enterprise," within the meaning of this section such preparation must be made as shall aid the expedition. The contribution of money, clothing for the troops, provisions, arms, or any other contribution which shall tend to forward the expedition or add to the comfort or maintenance of those engaged in it, is a violation of this provision. Charge to Grand Jury, Neutrality Laws (C. C. 1838), Fed. Cas. No. 18,265; Id. (C. C. 1851), Fed. Cas. No. 18,267; Id. (C. C. 1859), Fed. Cas. No. 18,268.

If the means provided were to be used only on the occurrence of a future contingent event, or if they were to be used at a time and under circumstances when their use would not violate the law, there is no offense. U. S. v. Lumsden (C. C. 1856), Fed. Cas. No. 15,641.

To provide the means for such an expedition implies that such means shall be actually furnished and brought together for the criminal purpose. Id.

The captain and mate of a United States vessel, who, knowing the character of their cargo and its intended purpose, transported arms from a port within the United States to a foreign port, together with men and stores to be used in a military expedit'ou against a people at peace with the United States, are guilty of violating this section. U. S. v. Rand (D. C. 1883), 17 Fed. 142.

To convict of providing means for a military expedition, etc., it must be proved (1) that a military expedition was organized in this country, and (2) that defendant, in the district of his trial, provided means for it with knowledge of its character. U. S. v. Hart (D. C. 1897), 78 Fed. 868; judgment affirmed Hart v. U. S. (1898), 84 Fed. 799, 28 C. C. A. 612.

Providing the means of transportation for a known military enterprise to be carried on from the United States against Spanish rule in Cuba is an offense, under this section, U. S. v. Murphy (D. C. 1898), 84 Fed. 609.

Furnishing money to be used on behalf of the people of another country in a struggle for independence, provided it is not to be used in organizing and fitting out with arms and ammunitions of war expeditions into and against any foreign country or its commerce, is not in contravention of the neutrality laws. Bailey v. O'Mahony (1871), 33 N. Y. Super. Ct. (1 Jones & S.) 29. 10 Abb. Prac. (N. S.) 270.

Military character of expedition.-It was proper for the court to charge that any combination of men organized in the United States to go to Cuba, to make war upon its Government, provided with arms and ammunition (the United States being at peace with Cuba) constituted a military expedition; and that it was not necessary that the men should be drilled, put in uniform, or prepared for efficient service; but that it was sufficient that they should have combined and organized in the United States to go to Cuba, and make war on a foreign Government, and should have provided themselves with the means of doing 80. Wiborg v. U. S. (1896), 16 Sup. Ct. 1127. 163 U. S. 632, 41 L. Ed. 289, affirming U. S. v. Wiborg (D. C. 1896), 73 Fed. 159.

Under this section the military character of an expedition against a nation at peace with the United States may be determined by the designation of officers or leaders. the organization of men in regiments or companies or otherwise, and the purchase

of military stores; but no particular number of men is necessary to complete the crime, nor is it necessary that such an expedition should actually set out, for the crime is completed by the mere organization, or any other step in the inception thereof. U. S. v. Ybanez (C. C. 1892). 53 Fed. 536.

In order to constitute a military expedition, within the meaning of this section, 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, according to the tactics, as infantry, artillery, or cavalry; but it is sufficient that they shall have combined or organized, within the United States, to go to the foreign territory and make war on the foreign Government, either as an independent body, or in connection with others, and have provided themselves with the means of doing so; and such provision, as by arming, etc., is itself probably not essential. U. S. v. Wiborg (D. C. 1896), 73 Fed. 159; judgment modified, Wiborg v. U. S. (1896), 16 Sup. Ct. 1127, 163 U. S. 632, 41 L Ed. 289.

A military expedition, in the meaning of the statute, comprehends any combination of men, organized in this country, however imperfectly, and provided with arms and ammunition, to go to a foreign country, and make war on its government; and it is immaterial whether the expedition intends to make war as an independent body, or in combination with others in the foreign country. U. S. v. Hart (D. C. 1897), 78 Fed. 868; judgment affirmed, Hart v. U. S (1898), 84 Fed. 799, 28 C. C. A. 612.

A combination of a number of men in the United States, with a common intent to pro ceed in a body to a foreign territory, and engage in hostilities, either by themselves or in cooperation with others, against a power with whom the United States is at peace, constitutes a military expedition, when they actually proceed from the United States, whether they are then provided with arms, or intend to secure them in transit. It is not necessary that all the persons shall be brought in personal contact with each other in the United States. or that they shall be drilled, uniformed, or prepared for efficient service. U. S. r. Murphy (D. C. 1898). 84 Fed. 609.

An indictment for conspiracy under this section which alleged that it was the intention of the defendants to blow up certain railroad tunnels, railroads, bridges, trains, and ships engaged in transporting munitions of war to certain-named belligerents held insufficient, as the charge that defendants conspired to set on foot or provide means for a military enterprise was

a mere conclusion and an attempt to destroy such tunnels, etc., was not necessarily a military enterprise, especially since it was not even alleged that the purpose of such destruction was to prevent the transportation of munitions of war. U. S. v. Bopp (D. C. 1916), 230 Fed. 723.

Necessity of hostile intention.-To constitute the offense of beginning, setting on foot, or providing the means for a military expedition against a nation with whom the United States is at peace, under act of Apr. 20, 1818, sec. 6, there must be a hostile intention connected with the act of beginning or setting on foot the expedition. U. S. v. O'Sullivan (D. C. 1851), Fed. Cas. No. 15,975.

When connected with such hostile intent the crime is completed either by beginning or setting on foot an expedition, or providing or procuring the means therefor. Id.

Overt or definite act. The overt act is not an invasion of a foreign country, but taking the incipient steps in the enterprise, such as providing the means for the expedition, furnishing munitions of war or money, enlisting men, and, in short, doing anything and everything that is necessary to the commencement and prosecution of the enterprise. Charge to grand jury, Neutrality Laws (C. C. 1851), Fed. Cas. No. 18,266; Id. (C. C. 1851), Fed. Cas. No. 18,267.

The offense of beginning or setting on foot, or providing or preparing the means for, a military expedition against a friendly State, under this section, is not complete without some overt or definite act. U. S. r. Lumsden (C. C. 1856), Fed. Cas. No. 15,641.

Mere words spoken or written, though indicative of the most determined purpose to do the forbidden acts, will not constitute an offense under the statute. Id.

Persons liable.-Mates of a foreign vessel sailing from a United States port, who at the time of sailing did not know that the vessel was to carry an expedition in violation of the neutrality law, and did not learn thereof until they met beyond the 3-mile limit another vessel containing men and arms, are not guilty of the offense. Wiborg v. U. S. (1896), 16 Sup. Ct. 1127, 163 U. S. 632, 41 L. Ed. 289, modifying judgment U. S. v. Wiborg (D. C. 1896), 73 Fed. 159.

Knowledge and approbation of the President. The fact that defendant set on foot a military expedition in violation of act of June 5, 1794, sec. 5, with the knowledge and approbation of the President, is no justification, as the President has no authority to set on foot a military expedition

against a nation with which the United States is at peace. U. S. v. Smith (C. C. 1806), Fed. Cas. No. 16,342.

Necessity of expedition starting for destination. To constitute the offense, it is not necessary that the expedition should start for its destination. U. S. v. O'Sullivan (D. C. 1851), Fed. Cas. No. 15,975.

Necessity of expedition being consummated with deviation of course.-An expedi tion, to be within act of June 5, 1794, sec. 5, need not to have been consummated without deviation of course. It is sufficient if it was begun and the means prepared to be carried on from the United States, though the vessel, at the identical time of sailing, was not in complete readiness for hostile engagements. U. S. v. Smith (C. C. 180C), Fed. Cas. No. 16,342a.

Expedition originating in United States or abroad. It is an offense against the act passed 1794 (1 Stat. 381) to concert an expedition from the United States to commit hostilities against a power at peace with the United States; and it is unimportant that such association originated beyond seas, if the expedition was carried on from hence. Ex parte Needham (C. C. 1817), Fed. Cas. No. 10,080.

It is unimportant whether the persons engaged in such a purpose engage the whole vessel to themselves, or depart from the United States as passengers. Id.

Upon an indictment charging defendants with beginning or setting on foot or providing means for a military expedition or en terprise from this country against Spain in aid of Cuban insurgents by the steamer Bermuda, where the steamer was arrested before she sailed, after taking on board about 60 men neither armed, equipped, nor offcered, and no proof except the doubtful testimony of one witness belonging to the party of any other intent on the part of the men except to go to Cuba and join the army after arrival there, the jury were instructed: (1) That it is no offense for individuals, singly or in company, and in any way they choose, to go abroad for the mere purpose of enlisting in a foreign army, provided they do not enlist in, or set on foot here, or prepare any military expedition or enterprise; (2) that such an expedition or enterprise, to come within the statute as one "carried on from this country," must consist of some body of persons designing to act together in a military way, and possess at the start from this country some element of a military character beyond the mere intent to enlist individually after arrival in Cuba; (3) that it is not necessary that it should possess all the elements of a military body at the start, but it is sufficient if there was a combination of men for that purpose,

with the intent that it should become so before reaching the scene of action; (4) that it is not unlawful to transport peaceably and by an unarmed vessel a body of men as individuals to Cuba who wish to enlist there, and such transportation does not constitute a providing of the means for a military expedition or enterprise, unless there is some enlistment or combination or agreement of the men to act in some way as a military body, or the use of some military force is contemplated, if necessary, in order to reach the insurgent army. U. S. v. Hart (C. C. 1896), 74 Fed. 724.

It is not an offense against the laws of the United States to transport to a foreign country men intending to enlist in foreign armies, and munitions of war, provided the persons transported have not combined and organized themselves, in the United States, to

make war on a foreign Government. U. S. v. Wiborg (D. C. 1896), 73 Fed. 159; judgment modified, Wiborg v. U. S. (1896), 16 Sup. Ct. 1127, 163 U. S. 632, 41 L. Ed. 289.

It is lawful for men, many or few, to go from this country as individuals, even by the same vessel, and though that vessel also carries arms as merchandise, for the purpose of joining a body of insurgents to fight against a foreign Government. U. S. v. Hart (D. C. 1897), 78 Fed. 868; judgment affirmed, Hart v. U. S. (1898), 84 Fed. 799, 28 C. C. A. 612.

Expedition against nation with which war is inevitable.-The setting on foot or providing the means of a military expedition against a nation with which the United States is at peace is an offense, notwithstanding it appear that war is inevitable, unless the prosecution of the expedition de pended upon its taking place. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,694a.

A citizen can not make the election, or anticipate his Government's making the election, to consider as an act of war the taking possession by another nation of contested territory, arising out of a dispute as to boundaries. Id.

Expedition against friendly power at peace. Act June 5, 1794, extends to warlike expeditions from this country, though not intended to aid one belligerent against another, but directed against a friendly power at peace with ali the world. U. S. v. O'Sullivan (D. C. 1851), Fed. Cas. No. 15,974; Id. (D. C. 1851), Fed. Cas. No. 15,975.

It is no defense to an indictment under this section that the Government of the friendly power against whom the expedi tion was directed had not been recognized by the United States. De Orozco v. U. S. (C. C. A. 1916), 237 Fed. 1008.

Purchasing arms and ammunition and placing them on board vessel.-When a party of insurgents, already organized and carrying on war against the Government of a foreign country, send a vessel to procure arms and ammunition in the United States, the act of purchasing such arms and ammunition, and placing them on board the vessel, is not within the scope of this section, prescribing a punishment for every person who, within the limits 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." U. S. v. Trumbull (D. C. 1891), 48 Fed. 99. Shipping and transportation, and leaving country to enlist in foreign service.It is no offense against the laws of the United States to transport, from this to a foreign country, arms, ammunition, and materials of war, either alone or together, in the same ship, with men who intend to enlist, provided they are not a part of or in aid of any military expedition or enterprise set on foot in this country. In such case the persons transported and the shipper and transporter only run the risk of capture, and the seizure of such arms and munitions by the foreign power against which the arms are intended to be used. U. S. v. O'Brien (C. C. 1896), 75 Fed. 900.

The transportation of goods for commercial purposes only and the carriage of persons separately, though their individual design may be to enlist in a foreign strife, are not prohibited by our law if the transportation is without any features of a military character. Indications of a military operation or of a military expedition are concert and unity of action, organization of men to act together, the presence of weapons, and some form of command or leadership. U. S. v. Nunez (C. C. 1896), 82 Fed. 599.

This section does not prohibit the shipping of arms, ammunition, or military equipments to a foreign country, nor forbid one or more individuals, singly or in unarmed association, from leaving the United States to join in any military operations being carried on between other countries or different parties in the same country. U. S. v. Pena (D. C. 1895), 69 Fed. 983.

It is not an offense against the laws of the United States to transport arms, ammunition, and munitions of war from the United States to a foreign country, whether they are to be used in war or not, and the shipper or transporter only runs the risk of capture, seizure, etc. U.S. v. Wiborg (D. C. 1896), 73 Fed. 159; judgment modified, Wiborg v. U. S. (1896),