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recover a money demand, and has no application to cases like that now before the Court.
If the whole question as to the delivery of the vessel on bail in the present case was one merely of judicial discretion, I should have great hesitation in acceding to the application of the claimants at the present time in so grave a case as that disclosed in the libel of information. The importance of a due and proper enforcement of the neutrality laws of the United States is so great that no course of procedure ought to be adopted by the Court which would afford an opportunity for a repetition of the offences charged against a particular vessel, at least until the public authorities have been afforded a reasonable time to substantiate, through a judicial trial, their allegations against such vessel. But, aside from the correctness or incorrectness of the views thus expressed, I am persuaded that the direct legislation of Congress in the act upon which the libel of information in the present case is founded (Act of April 20th, 1818, 3 U. S. Stats. at Large, 447), covers the subject-matter of the present application, and is conclusive upon the question that the vessel, while held under seizure by process in favor of the United States for the violation of that statute, cannot be discharged on bail by order of a judge of the United States, under the authority of the common rules and practice of the Court.
The third section of that act enacts that “if any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out, or arming of any ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign prince or state, or any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace,” &c., &c., every such ship or vessel, with her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores which may have been procured for the building and equipment thereof, shall be forfeited. The amended libel avers, as causes of forfeiture, various violations of the third section of the act. The eighth section of the act provides that “ in every case in which a vessel shall be fitted out and armed, or attempted to be fitted out and armed, ... contrary to the provisions and prohibitions of this act, ... it shall be lawful for the President of the United States, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, for the purpose of taking possession of and detaining any such ship or vessel, ... in order to the execution of the prohibitions and penalties of this act, &c., &c.” The clear purport and intent of these provisions of the eighth section is, that the vessel whose forfeiture is claimed, through judicial proceedings, for an offence against the third section, shall herself be detained, so that the forfeiture, which is the penalty imposed by the third section, may be enforced against her specifically in case of her condemnation. Such detention must continue, at least, until the government has had a reasonable opportunity to bring the case to trial. To the suggestion of the hardship of the case to the claimants, in case of an acquittal of the vessel on trial, the answer is, that it is not intprobable that the policy adopted by Congress of holding the vessel in custody to secure the rigid observance of the neutrality laws would be considered by the government as furnishing ground for making compensation for the loss and damage caused by an unwarranted prosecution. The application is overruled.
TRIAL UPON THE ISSUE OF OWNERSHIP.
United States District Court for the Southern District of New York.
March 26, 27, 28.
HON. SAMUEL R. BETTS, PRESIDING JUDGE.
Hon. D. S. DICKINSON, U. S. Dist. Attorney,
appeared for the United States.
WILLIAM M. Evarts, Esq.,
Joseph H. Choate, Esa," } appeared for the claimants.
FIRST DAY, MONDAY, March 26th.
The case being called, the District Attorney addressed the Court.
THE DISTRICT ATTORNEY. We are ready to proceed, if the Court please. The claimants allege that they are the sole owners of this vessel, and that no other persons are owners. We deny the allegation. I suppose that is the first issue to be tried. It is necessary to dispose of that before we enter upon the main question. Of this question, — the allegation that they are the sole owners, they have the affirmative.
The Court. Do you so understand it, Mr. Evarts ?
MR. Evarts. Not in the least, sir. I do not consider the issues separable. We are the owners for the purpose of the claim; that is all that is involved in the question.
THE DISTRICT ATTORNEY. There are two issues here, and this is a preliminary issue.
The Court. What is the form of the pleading ?
MR. EVARTS. The claim and the answer are united as in the ordinary pleading.
MR. WEBSTER. Oh, no; the claim is distinct from the answer. In the revenue cases they are united; here they are distinct.
MR. Evarts. They are not necessarily distinct or united.
MR. WEBSTER. In this case, the note of issue which has been filed by the claimants is a note of issue upon the exceptions to the claim. There has been no note of issue filed in respect to the merits, and the case is not at issue upon the merits; it is only at issue now upon the exceptions to the claim. The claim was filed by Mr. William F. Cary in behalf of the Messrs. Forbes, with the allegation that the persons above named, to wit, Robert B. and John M. Forbes, are the true and bona fide sole owners of the said steamship, and that no other person is the owner thereof."
In response, the District Attorney says: “And now the said United States of America, appearing before this honorable Court by Daniel S. Dickinson, Esq., Attorney of the United States for the Southern District of New York, say that the said Robert B. Forbes and John M. Forbes were not, at the time of the forfeiture alleged in the libel aforesaid, and are not now, the sole, true, and lawful owners of the said steamship Meteor, her tackle, &c., in manner and form as the said Robert B. Forbes and John M. Forbes have above claimed. Wherefore, the said United States pray that the said claim of said Robert B. Forbes and John M. Forbes may be dismissed, and for such other or further order as to the honorable Court may seem just in the premises.”
It is upon that issue thus raised upon the claim and the exceptions to the claim that the note of issue has been filed at this term.
MR. EVARTS. The ordinary course of law has been to unite the claim and answer in one pleading, and there is no difference between cases of this kind and ordinary admiralty cases. It seems that we have followed the other form, the claim being put in before the answer. Now he has joined issue upon the claim on a pure issue of fact, and it is not an exception to the form of the claim. It is not a demurrer to the claim as being an inadequate one, but an affirmative allegation, not that these parties are not the owners, not in the least, but that there are other owners. That is the substance of it, and he ought to have pleaded
who the other ones were. But that I care nothing about. There is no denial that the claimants are owners. That issue, therefore, is not raised.
MR. WEBSTER. On the contrary, the pleading raises that issue distinctly. The exception taken makes the assertion that Robert B. Forbes and John M. Forbes are not now the lawful owners of the said steamship.
Mr. Evarts. Do you say that it is the issue that they are not owners ?
MR. WEBSTER. Clearly.
MR. EVARTS. There is no denial that they are owners, but an allegation that there are other owners.
The Court. Upon this it appears that there are two issues.
The DISTRICT ATTORNEY. We are entitled to have both issues tried, and if there are other owners, to have them brought in, or at any rate treat them as parties.
The Court. In point of fact, I understand you have notice of the cause separately.
The DISTRICT ATTORNEY. Yes, sir.
The Court. You have a right to do that. You have a right to sever the issues.
MR. EVARTS. We have noticed the case on the merits on our own side.
Do we understand that the government does not expect to try this case on the merits?
MR. WEBSTER. I understand the course taken by the District Attorney in this case is similar to that in the case of the slaver Kate, in which there was an exception made to the claim, and your Honor held that the issues could be separated, as is asked in this case, and the excepted allegation tried first. In that case the claimants had the affirmative of the issue, the claim was first disposed of, and then the case came up on its merits. That is the course we propose to follow in this case.
THE DISTRICT ATTORNEY. When this issue is disposed of.
THE DISTRICT ATTORNEY. We deny that they are sole owners; that is the fact of it; because if there are twenty tenants in common of this vessel, they are not owners if they only hold two shares.