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statement which has been made of the case, obiter dicta, and not necessary to the decision of the cause, restitution of the property being decreed upon the ground of the illegal augmentation of the force of the capturing vessel in our ports prior to the capture. The facts in regard to the commercial adventure of the Independencia, referred to by Mr. Justice Story, as they appear in the report of the case, were, that that vessel, having been a privateer during the war between the United States and Great Britain, was, after the peace, sold by her original owners, and loaded by her new ones, at Baltimore, in January, 1816, with a cargo of munitions of war ; that she sailed from Baltimore with them, and armed with twelve guns, part of her original armament, to Buenos Ayres, under written instructions from her owners to her supercargo, authorizing him to sell the vessel to the government of Buenos Ayres, if he could obtain a suitable price; and that she was sold at Buenos Ayres to parties who again sold her, so that she became a public commissioned vessel of the government of Buenos Ayres. It was on these facts that Judge Story remarked that the vessel, though equipped as a vessel of war, was sent to Buenos Ayres on a commercial adventure in no shape violating our laws or our national neutrality, and that there is nothing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels to foreign ports for sale. If the Messrs. Forbes, or any of the owners of the Meteor, or Mr. Cary, their agent, or any of the parties concerned in the transactions in regard to the Meteor, had testified before the Court, on this trial, that the Meteor was going out to Panama on a purely commercial adventure, to be sold there, if a suitable price could be obtained, and if it appeared that there was no intent on the part of the owners, or any other person, that the vessel should be used to violate the neutrality of the United States, there might be some pretence that this case was within the principle thus laid down by Mr. Justice Story. But the whole testimony points in a different direction. The transaction with the agents of Chile at New York, in regard to the Meteor, was, it is true, a commercial adventure, in so far that the vessel was sold, and that such sale was a matter of trade or commerce at New York, between her owners and the agents of the government of Chile. But, in the sense in which Mr. Justice Story speaks of the sending of the Independencia to Buenos Ayres on a commercial adventure, there was no commercial adventure in the case of the Meteor.
What the Supreme Court regard as not being a commercial adventure is shown by the opinion of that Court, delivered by Chief Justice Marshall, in the case of The Gran Para (7 Wheaton, 471), which came before that Court at the same term as the case of The Santissima Trinidad. It was a libel filed in the District Court of Maryland, by the Consul-General of Portugal, praying for the restitution to Portuguese owners of a quantity of gold and silver coin alleged to have been taken from the Portuguese ship Gran Para by a private armed vessel called the Irresistible, fitted out in the United States in violation of the Neutrality Acts. It appeared that the Irresistible was built as a war vessel in the United States, and sailed from Baltimore for Teneriffe, between February and June, 1818, with a crew of fifty men, and with cannon, small arms and ammunition in her hold, entered outwards as cargo; that she proceeded to Buenos Ayres, and was commissioned as a vessel of the government of Buenos Ayres, to cruise against Spain, and sailed from Buenos Ayres on a cruise, in June, 1818; that the next day her master produced a commission from the Chief of the Oriental Republic, to cruise under that commission, and sent back the commission of the government of Buenos Ayres; that during the cruise the money in question was captured ; and that the Irresistible subsequently brought the money to Baltimore. Chief Justice Marshall, in his opinion, says: “ That the Irresistible was purchased, and that she sailed out of the port of Baltimore, armed and manned as a vessel of war, for the purpose of being employed as a cruiser against a nation with whom the United States were at peace, is too clear for controversy. That the arms and ammunition were cleared out as cargo cannot vary the case. Nor is it thought to be material that the men were enlisted in form as for a common mercantile voyage. There is nothing resembling a commercial adventure in any part of the transaction. The vessel was constructed for war, and not for commerce. There was no cargo on board but what was adapted to the purposes of war.
The crew was too numerous for a merchantman, and was sufficient for a privateer. These circumstances demonstrate the intent with which the Irresistible sailed out of the port of Baltimore. But she was not commissioned as a privateer,
nor did she attempt to act as one, until she reached the river La Plata, when a commission was obtained and the crew re-enlisted. This Court has never decided that the offence adheres to the vessel, whatever changes may have taken place, and cannot be deposited at the termination of the cruise in preparation for which it was committed ; and, as the Irresistible made no prize on her passage from Baltimore to the river La Plata, it is contended that her offence was deposited there, and that the Court cannot connect her subsequent cruise with the transactions at Baltimore. If this were to be admitted in such a case as this, the laws for the preservation of our neutrality would be completely eluded, so far as their enforcement depends on the restitution of prizes made in violation of them. Vessels completely fitted out in our ports for military operations need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and re-enlisting their crew, to become perfectly legitimate cruisers, purified from every taint contracted at the place where all their real force and capacity for annoyance were acquired. This would, indeed, be a fraudulent neutrality, disgraceful to our own government, and of which no nation would be the dupe. It is impossible for a moment to disguise the facts, that the arms and ammunition taken on board the Irresistible at Baltimore were taken for the purpose of being used on a cruise, and that the men there enlisted, though engaged in form as for a commercial voyage, were not so engaged in fact. There was no commercial voyage, and no individual of the crew could believe that there was one. Although there might be no express stipulation to serve on board the Irresistible, after her reaching the La Plata and obtaining a commission, it must be completely understood that such was to have been the fact. For what other purpose could they have undertaken this voyage ? Everything they saw, everything that was done, spoke a language too plain to be misunderstood.” The Court affirmed the decree restoring the money, on the ground that it had been captured by a vessel which had violated our neutrality law. The Court held that the Irresistible came within the prohibitions of that part of the third section of the Neutrality Act of June 5, 1794 (1 U. S. Stat. at Large, 383), which makes it penal for any person, within any waters of the United States, to be knowingly 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, to cruise or commit hostilities upon the subjects, citizens, or property of another foreign prince or state with whom the United States are at peace.” The Court also referred to the fact that the Neutrality Act of March 3, 1817 (3 U. S. Stat. at Large, 370, § 1), adapts the previous laws to the actual situation of the world, by adding to the words “of any foreign prince or state,” in the third section of the act of 1794, the words “ or of any colony, district, or people.” The third section of the act of April 20, 1818, is in substance the same with the first section of the act of 1817. The Meteor, although she did not have on board of her, when seized, any cannon, small arms or ammunition, except the boxes of cannon-shot testified to by the witness Sease, was not, on the evidence, really engaged any more in a commercial adventure, in taking out her clearance for Panama, than was the Irresistible in her voyage to Buenos Ayres. The Meteor, although not completely fitted out for military operations, was a vessel of war, and not a vessel of commerce. She had in no manner been altered from a vessel of war so as to fit her to be only a merchantman, and so as to unfit her to be a vessel of war.
It needed only that she should reach a point beyond the jurisdiction of the United States, and there have her armament and ammunition put on board of her, to become an armed cruiser of the Chilian government against the government of Spain. To permit a transaction of the kind shown by the proofs in this case to be consummated, would, in the language of Chief Justice Marshall, in the case of The Gran Para, be " a fraudulent neutrality.”
The case of Moodie v. The Alfred (3 Dallas, 307), decided by the Supreme Court at the August term, 1796, was pressed, upon the argument, by the counsel for the claimant, as sanctioning the freedom of commerce for which he contended. In that case, a British prize had been taken by a French privateer and sent into Charleston. The privateer had been built in New York, with the express view of being employed as a privateer against Great Britain, in case there should be a war between the United States and Great Britain. Some of the equipments put upon her in New York were calculated for war, though they were frequently used for merchant ships. She was sent to Charleston, where she was sold to a French citizen. He carried her to a French island, where she was completely armed and equipped and furnished with a commission, and she afterwards sailed on a cruise, during which the prize in question was taken. It was contended, in that case, that the original construction or outfit of the privateer was an original construction or outfit of a vessel for the purposes of war, and that therefore, the capture of the prize was illegal; but the Court overruled this view. That case affords no countenance to the doctrine in support of which its authority is adduced. The only fact appearing in the case bearing on the illegality of the transaction was, that the vessel was built in the United States, was furnished there with some warlike equipments, and was there sold to a French citizen. But the main ingredient was wanting of any furnishing, fitting out or arming of the vessel with intent that she should be employed in the service of France, to cruise or commit hostilities
upon the subjects or property of Great Britain. She was built with the intent to cruise in the service of the United States against Great Britain in the contingency of a war between those two powers, and no circumstance appears in connection with the sale of the vessel, except that she was sold in the United States to a French citizen. If it had been shown that she was purchased by the French citizen with intent to employ her in the service of France to cruise against Great Britain, the case might have been a different one, and the decision might have been different; but the case as it stands furnishes no support to the doctrines urged by the counsel for the claimant.
Nor is there anything to be found in the decision of the Supreme Court in the case of The United States v. Quincy (6 Peters, 445), which sanctions those doctrines. According to that decision, the question of intent is the main question under the neutrality law, and, as the Court say, “all the latitude necessary for commercial purposes is given to our citizens, and they are restrained only from such acts as are calculated to involve the country in war."
The sale of a fully armed vessel of war in the United States to a belligerent government, or to a subject or citizen of such government, may be, as a naked act, lawful and no offence against the law of nations or the statutory law of the United States ; but, if such vessel passes virtually, and to all practical intents and purposes, in the United States, into the control of the belligerent