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or not, be knowingly concerned in the furnishing, supplying, provisioning, coaling, or otherwise fitting out that ship, with intent that she be used in violation of the neutrality of the United States. This construction may seem harsh, but the severity is in the law itself. It is not unlikely that Congress contemplated a condition of things where, by reason of the law, a vessel of innocent owners might be forfeited ; and, in such case, the government would undoubtedly make all proper reparation, upon the ground that it was a case of private property taken for public uses; it being for the general good that the government should itself take possession and control of a vessel about which either foreign agents or our own citizens were concerned, with intent of using such an instrument to endanger the peace of the United States with foreign nations. We had an example of this during our own recent rebellion, when the tardy and infirm neutrality of England at last appropriated to itself certain iron-clads, about which there was suspicion that confederate agents were concerned, and thus prevented the possibility of their going forth upon the sea, to add to the existing complications between Great Britain and the United States.
It will not escape the attention of the Court, as I am sure it has not the attention of the learned counsel opposed, that the inculpated vessel need not be armed, in order to authorize her condemnation, under the third section of the act of 1818. The operative words of the section, in this relation, are “furnishing, fitting out, or arming.” The conjunction is disjunctive, and not copulative. If there could be any doubt upon this point, we find it removed by the case of The United States v. Quincy, decided by the Supreme Court of the United States, in the sixth volume of Peters, p. 445. That was a criminal case, coming up from the Circuit Court of the United States for the Maryland District, on a division of opinion upon certain instructions to the jury which were prayed for. The accused was upon trial under an indictment founded on the very section now under consideration. His counsel contended that the vessel must be “ fitted out and armed, if not complete, so far, at least, as to be prepared for war, or in a condition to commit hostilities.” The Supreme Court replied :
“ We do not think this a true construction of the act. .. The act evidently contemplates two distinct classes of offenders. The act, in this respect, may not be drawn with very great perspi
cuity. The defendant is only charged with being knowingly concerned in the fitting out of the vessel with intent that she should be employed, &c. To bring him within the words of the act, it is not necessary to charge him with being concerned in fitting out and arming. The words of the act are fitting out or arming. Either will constitute the offence. But it is said such fitting out must be of a vessel armed, and in a condition to commit hostilities; otherwise the minor actor would be guilty, but the greater would not, for as to the latter there must be a fitting out and arming, in order to bring him within the law. If this construction of the act be well founded, the indictment ought to charge that the defendant was concerned in fitting out the Bolivar, being a vessel fitted out and armed, &c. But this, we apprehend, is not required. It would be going beyond the plain meaning of the words used in defining the offence. It is sufficient, if the indictment charges the offence in the words of the act; and it cannot be necessary to prove what is not charged.”
Here, again, if the provisions of the law are harsh, and seem to unnecessarily interfere with the reasonable commercial operations of our people, Congress is in fault; but this tribunal can give no remedy or redress. If the law prevents speculation in ships, appeal must be made to Washington, not to your Honor. If the third section of the act of 1818 prohibits Messrs. Forbes, Low, Lawrence, and Company from selling their property to Chile, with intent that she be used as a privateer against Spanish commerce, arguments must be addressed to committees of Congress, and not to judges, who are bound to pronounce and execute the law as it is written.
If it be said that the general rules of international law do not prohibit a neutral from selling arms, cannon, and shells, to a belligerent, and that the United States purchased such things freely in European markets during the rebellion ; the answer is, that the act of 1818 places furnished ships, if fitted out with a certain intent, in a different condition from other contraband of
It is undoubtedly true that the intent" that such ship or vessel should be employed in the service of a foreign State, to cruise or commit hostilities,” &c., must unite with the act of furnishing, or fitting out, in order to bring the transaction within the denunciations of the third section ; but yet "arming” is not necessarily involved in proof of an intent to cruise or commit hostilities. Still less is “arming," within the jurisdiction of the United States, necessarily involved in the intent to cruise or commit hostilities. Under the act of 1818, the vessel is forfeited, provided any person does an act of furnishing, or fitting out, of any kind or description, whether it be supplying her with sails or anchors or provisions or steam engines or coal, with intent that said steamer be eventually employed to cruise, or commit hostilities, against a foreign government with which the United States are at peace. It is clear that the intent must be proved; but when the Court is satisfied of the intent, any furnishing, or fitting out, is within the act of 1818.
As I have already been permitted to say to the Court, our Neutrality Act is preventive and prohibitory in its purpose, and its great object is to obstruct the departure of the ship, about which persons are concerned with intent to make her a privateer. The government has the same interest in stopping a steamer fitted out with intent to be a cruiser, upon which arms are to be placed from another vessel, when thirty miles at sea, as it has in detaining a vessel fully equipped as a man-of-war, and ready to destroy and devastate the instant she leaves the dock. It is not necessary, after the sad experience of the mercantile interests of the United States, - burned and sunk by Anglo-rebel cruisers, — to press upon this Court the public reasons which resist such an interpretation being put upon the act of 1818, as would enable a steamer, fitted out in all respects to be a privateer, to escape, because her arms were not to be put on board until she had passed seaward, beyond the limits of a marine league, and thus gone beyond the territorial jurisdiction of the United States.
The single question is, I repeat, were any persons concerned in fitting out the Meteor, with the intent that she be used, in the interest of Chile, to cruise against Spanish subjects or property? When the Court has found this intent, then it makes no difference whether there are cannon or shell or munitions of war on board. No decisions of federal Courts, bearing directly upon the point in question, have come under my observation, but there are a sufficient number which give clear indication of what the highest federal tribunal of this country cannot fail to say when such a question is presented to it.
The Slave-Trade Act of April 20, 1818, approved, singularly enough, on the same day as the Neutrality Act now under consideration, in its second section, provides that, “ If any ship, or vessel, shall be so built, fitted out, equipped, laden, or otherwise prepared for the purpose aforesaid, every such ship, vessel, &c., shall be forfeited."
The case of The United States v. Gooding, reported in twelfth volume of Wheaton, page 460, was a prosecution in the Circuit Court of Maryland, on an indictment under the Slave-Trade Act of 1818. The indictment alleged that the accused did “ fit out a certain vessel, with intent to employ her in procuring negroes from a foreign country," &c.; and the third instruction of the Court to the jury turned upon the point whether the fitting out, in the sense of the act of Congress, meant a complete equipment, so that a partial equipment would extract the case out of the prohibition of the statute. In considering this point, the Court say (p. 472):
“ This objection appears to us to proceed from a mistaken view of the facts applicable to the case. If the vessel actually sailed on her voyage from Baltimore for the purpose of employment in the slave trade, her fitment was complete for all the purposes of the act. It is by no means necessary that every equipment for a slave voyage should have been taken on board at Baltimore, or indeed that any equipments exclusively applicable to such a voyage should have been on board. The presence of such equipments may furnish strong presumptive proof of the object of the voyage, but they do not constitute the offence. The statute punishes the fitting out of a vessel with intent to employ her in the slave trade, however innocent the equipment may be when designed for a lawful voyage. It is the act, combined with the intent, and not either separately, which is punishable. Whether the fitting out be fully adequate for the purposes of a slave voyage, may, as matter of presumption, be more or less conclusive; but if the intent of the fitment be to carry on a slave voyage, and the vessel depart on the voyage, her fitting out is complete, so far as the parties deem it necessary for their object, and the statute reaches the case.”
The Supreme Court in this opinion, an extract from which I have had the honor to read to the Court, covers perfectly the question whether there need to be an “arming," within the United States, under the clause of the third section of the Neutrality Act,
in order to bring the matter within the penalties of the law. * The Supreme Court can but say, whenever that question is presented to it, as it did in United States v. Gooding, that the presence of arms may furnish strong presumptive proof of the object of the voyage, but it does not constitute the offence. The statute punishes the fitting out of the Meteor, with intent to employ her in cruising or committing hostilities against Spain, whether there be arms on board or not; and the absence or presence of arms is only a matter for the consideration of the Court, in arriving at a conclusion whether the intent existed. Besides, it is very clear that an armament is not necessary to enable a ship to “cruise,” which is but passing and repassing, roving or wandering about the sea. Cruising may be to attack an enemy's armed ship, or to plunder unąrmed merchantmen and fishermen, after the manner of the Shenandoah; but it may also be to act as a tender, transport, or supply-boat to a full-rigged man-of-war.
In a word, it is enough if the Meteor was eventually to take part, as an armed or unarmed cruiser, in hostilities between Spain and Chile.
I desire now, with permission of the Court, to read from a charge given by your Honor to the Grand Jury of this district some years since. I find it in the second volume of “ Wharton's Criminal Law," p. 522; and I call attention to it here, not only because it sets forth, with comprehensive grasp and perfect precision, the national objects which underlie the legislation of 1818, but it pertinently calls attention to the presumptions with which all concerned in the administration of justice should come to a consideration of the question of intent, as involved in the Neutrality Act. The vast experience of your Honor in slave-trade cases and in prize law has made it apparent with what consummate art and cunning persons who seek to violate the laws of neutrality, slavetrade, and blockade, cover up their intent. The extract is as follows:
“ The act of Congress of April 20, 1818, prescribes the laws of neutrality which our citizens are bound to observe in regard to foreign nations. The provisions are stringent, but not more so than comports with the high character for justice and good faith toward others which it is the policy and aim of this government to maintain. In leaving to every citizen, as an individual, the undisputed right to expatriate himself, at his own option, and connect himself with any other nation or people, this government still possesses the unquestionable power to prohibit that citizen, individually, or in association with others, entering into engagements