Mr. Phillips' Argument for Appellees. There are ample provisions of municipal law to punish those who set on foot enterprises for the purpose of committing hostilities against a power with which we are at peace. Section 6 of the act of 1818 (3 Stat. 448), reënacted in section 5286, Revised Statutes, prohibits military enterprises 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." This section, as we have seen, provides fully for offences against the peace of a foreign state, including enlistments. It applies as well in times of peace as in times of war. There is no requirement that the expedition or enterprise should be in the service of any government or "people." It is only necessary that it should be directed against the territory or dominions of a "people." This use of the words "any people" conclusively shows that in the sense of Congress it meant a power exercising or asserting dominion, and is therefore of great significance in the argument. Under this clause no forfeiture is provided. For any offences committed at sea amounting to piracy under our laws, those laws provide ample penalties. But if at any time Spain should think it necessary for this country to enforce its law regarding the fitting out of belligerent cruisers, the remedy is in her own hands; she has but to recognize a state of war. This has always been determined by our Government. Neither the United States nor Spain admits there exists a state of belligerency, and in its absence there cannot exist any obligations of neutrality. In preparing the Foreign Enlistment Act of 1819, taken from our act, Parliament added to the language of our statute, "or part of any province or people or of any person exercising or assuming to exercise any powers of government in or over any foreign state, colony, province or parts of any province or people." 59 George III, c. 69, 7. This additional language was undoubtedly inserted in view of the pronounced object of the language of the amendatory Mr. Phillips' Argument for Appellees. acts of 1817, 1818, as applying only to an empire or sections of an empire, and in view, also, of the construction of the word "people" by our decisions and in the light of the English case of Nesbitt v. Lushington, supra, defining the meaning of the same expression. In the case of The Itata, in some respects similar to the present controversy, the District Court of the United States for the district of California, in an opinion, said as follows: "Prior to the passage of the act of April 20, 1818, the Supreme Court of the United States, in the case of Gelston v. Hoyt, 3 Wheat. 245, speaking through Mr. Justice Story, held that section 3 of the act of 1794, prohibiting the fitting out of any ship, etc., for the service of any foreign prince or state,' to cruise against the subjects, etc., of any foreign prince or state with which the United States were at peace, did not apply to any new government unless it had been recognized by the United States or by the government of the country to which such new country belonged, and that a plea which set up a forfeiture under that act, in fitting out a ship to cruise against such new state, must aver such recognition, or it is bad. "Congress, in passing the subsequent act of April 20, 1818, by which the provision referred to of the act of 1794 was, in substance, reënacted, must be presumed to have known the construction that had been theretofore put by the Supreme Court upon the words 'prince or state' in the act of 1794, and with that knowledge in passing the act of 1818 inserted in the same clause the words 'colony, district or people.' This was done, according to Dana's Wheaton, sec. 439, note 215, and 1 Whart. Int. Dig. p. 561, upon the suggestion of the Spanish minister that the South American provinces then in revolt and not recognized as independent might not be included in the word 'state.' But in every one of those instances the United States had acknowledged the existence of a state of war and, as a consequence, the belligerent rights of the provinces." 49 Fed. Rep. 646. Affirmed on Appeal, 56 Fed. Rep. 505. No attempt was made by the Government to obtain a review of either of these decisions. Mr. Phillips' Argument for Appellees. President Harrison was of opinion that the matter was a proper one to call to the attention of the legislature. In his message, December 9, 1891, he said: "A trial in the District Court of the United States for the Southern District of California has recently resulted in a decision holding, among other things, that, inasmuch as the party offending had not been recognized as a belligerent, the acts done in its interest could not be a violation of our neutrality laws. From this judgment the United States has appealed, not that the condemnation of the vessel is a matter of importance, but that we may know what the present state of our law is, for, if this construction of the statute is correct, there is obvious necessity for revision and amendment." There have been several cases decided in the District Courts involving the condemnation of vessels where the question as to the application of the statute was not raised or discussed by the court. United States v. Mary M. Hogan; Brown, Justice, 18 Fed. Rep. 529; United States v. 214 Boxes, etc., 20 Fed. Rep. 50; The City of Mexico, 28 Fed. Rep. 148. The same judge who decided the first case also decided that of The Carondelet, 37 Fed. Rep. 799. There the question was much discussed, and although the libel was dismissed on a different ground, the judge leaves no doubt as to his views. The question was whether a vessel entering the service of the faction under Hippolyte, in Hayti, which had not been recognized, could be said "to enter the service of a foreign prince or state, or of a colony, district or people, unless our Government had recognized Hippolyte's faction as at least constituting a belligerent, which it does not appear to have done." The judge remarked that the statute was a highly criminal and penal one; that it was not to be enlarged by construction. beyond the fair import of its terms. In United States v. Hart, the same judge said: Section 5283 deals with armed cruisers, designed to commit hostilities in favor of one foreign power as against another foreign power with whom we are at peace." 74 Fed. Rep. 724. Mr. Phillips' Argument for Appellees. In the case of The Conserva, 38 Fed. Rep. 431, Judge Benedict held that the language of section 5283, Revised Statutes, as to the commission of hostilities against the subjects, citizens or property of a foreign prince or people, did not include factions engaged in insurrection who were not recognized by the United States as belligerents. The question was whether the section applied, as neither Hippolyte nor Légitime, who were struggling for supremacy in Hayti, had been recognized by our Government as belligerent powers. "In the absence of proof of that fact, the fitting out of a vessel with intent to enter the service of one to commit hostilities against the other is not brought within the scope of the statute." It is said that the history of the act tends to show "that it was intended to cover every revolutionary body, recognized or unrecognized, which made bona fide claims to rights of sovereignty." But where is it shown in this record that there exists "a revolutionary body claiming the rights of sovereignty"? A good deal has been said about a "recognition of insurgency" as distinguished from a recognition of belligerency. I think this is the first time in any court of justice that such a distinction has been made. The expression, "recognition of insurgency," is not found in the works of any of the accepted writers on international law, nor is it a part of our jurisprudence. It has been used by Dr. Wharton in a paper which he contributed to a law magazine. The only meaning he attaches to the expression, is that the Government when it sees that certain persons are insurgents, may refuse to treat them as pirates. The court is now asked to enforce a provision regarding the fitting out of belligerent cruisers, a strictly neutrality provision, where there is no neutrality, no recognized war. Our Government is going further than Spain has ever admitted and further than she is willing to go. Our Government here insists that there is a war, that there is a hostile sovereignty in Cuba, and that the people of Cuba as "a a people" are in revolt against Spain. The Government, in Mr. Cockrell's Argument for Appellees. effect, says to Spain: We will enforce neutrality in your favor, but not in favor of the other party which we now assert to be "a people." This argument admits our obligations to Spain are just the same under the present conditions, when that Government does not admit there is a war, as if there was belligerency. This is a great responsibility for the Government to take, and a great responsibility for this court to declare. Mr. A. W. Cockrell for appellees. The act of arming, etc., a vessel is punishable only when that act of arming, etc., done as therein provided, is accompanied by the intent, imputed to the person or persons therein specified, of doing the thing therein provided against. Is it not idle to say that the vessel may be forfeited, under this statute, for the acts or doings, therein specified, dissociated from the intent therein imputed to the persons therein specified? If it be that the acts and doings therein specified must be accompanied with the intent therein specified before persons can be punished thereunder, it follows the vessel cannot be condemned to forfeiture otherwise than upon allegations and proof showing those acts and doings, and allegations and proof showing the intent, therein denounced, with which they were committed. Under any other construction, a vessel may be condemned to forfeiture, upon allegations and proof, short of those required to punish the offending persons. Whereas, the plain, imperative, unambiguous language of the statute, is "And every such vessel," etc.; that is, a vessel in respect of which these acts and doings have been committed; a vessel, in respect of the arming of which, this intent existed; and, equally and alike, a vessel in respect of which, the intent of the offending persons therein denounced has been ascertained by their conviction thereof. Condemnation to forfeiture is not, by the law-making power, predicated of any other vessel, than such vessel. Forfeiture is denounced against a vessel so fitted out and armed, with the |