United States v. The Itata

56 F. 505, 5 C.C.A. 608, 1893 U.S. App. LEXIS 2083

Opinions

HAWLEY, District Judge.

These cases were tried together upon tlie evidence introduced in the district court in the case of U. S. v. Trumbull, 48 Fed. Rep. 99, so far as the same was applicable, and upon certain additional depositions. U. S. v. The Itata, 49 Fed. Rep. 647. A consideration of one case disposes of both.

On the 8th day of July, 1891, the United States attorney for the southern district of California filed a libel of information against the steamship Itata, alleging, in substance, (1) that on the 8th of May, 1891, within the limits of the L’nited States, and -within the jurisdiction of the court, one Pedro Manzen and divers other persons “did unlawfully fit out and arm said steamship or vessel called the Itata, with intent that such steamship or vessel should be employed in the service of certain foreign people, viz. certain inhabitants and citizens of the republic of Chile, then organized and banded together in large numbers and in great force, and engaged in open, armed hostilities and attempted revolution against the republic of Chile, and the lawful government thereof, said insurgents being known as the ‘Congressional Party/ to cruise and commit hostilities against the citizens and property of a foreign state, viz. the republic of Chile, with which republic the United States were then and now are at peace/’ (2) that on the 8th of May, 1891, within the limits of the United States, and within about two miles from the island of San Clemente, said persons “were unlawfully concerned in the furnishing and fitting out” of said steamship with the intent alleged in the first count; (3) that on the 6th day of May, 1891' within the limits of the United States, at the port of San Diego, in the state of California, said persons “were unlawfully concerned in the fitting out and furnishing of” said steamship with the same intent. All of which acts are alleged to be contrary to the form of the statute in such case made and provided, and that by force of the statute the said steamship Itata, her tackle, apparel, and furniture, “became and are forfeited to the uses in said statute prescribed.”- In due time the gobierno provisorio de la república de Chile, as claimant of said steamship, filed an answer, specifically denying that the Itata was fitted out or armed, or furnished or fitted out, in any way as alleged in the libel, or for any purpose. It admits that at the date alleged the said vessel was in the service of the gobierno pro-visorio de la república de Chile, or the provisional government of the republic of Chile, in said libel described as the “Congressional Party,” and it avers that said government was and is the lawful government of said republic of Chile. It admits that said government was carrying on war, but it denies that said war was against the government or people of the republic of Chile. And it denies that the action of the said government, or said Pedro Manzen, or any person connected with said steamship, was or is against the form of the statute of the United States, or that by reason of any act of this respondent, or of said Manzen, or of any person connected with said steamship, the same was or is forfeited. The statute in question reads as follows:

“See. 5283. Every person who, within the limits of the United States, fits out and arms, or attempts to lit out and arm, or procures to he fitted out and armed, or know ing'ly iw concerned in the furnishing', fitting out, or arming of any vessel, with intent that such vessel shall he employed in the service of any foreign prince or state, or of 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, or who issues or delivers a commission within the territory or jurisdiction of the United States for any vessel to the intent that she may he so employed, shall he deemed guilty of a high misdemeanor, and shall he lined not more than ten thousand dollars, and imprisoned not more than three years. And ('very such vessel, her tackle, apimrel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof, shall be forfeited,— one-half to the use of the informer, and tho other half to the use of the United States.”

The facts found by the district court are as follows:

‘•In January of 18S)1 tho steamship Itata was an ordinary mediant vessel. Early in that month she was captured in the harbor of Valparaiso, Chile, by tho people then known as the ‘Congressional Party,’ and who were then engaged in an effort to overthrow tho then established and recognized government of Chile, of which Balmaceda was the head. The Itata was by the Congressional party put in command of one of its officers, and was used in their undertaking as a transport to convey troops, provisions, and munitions of war, and also as a hospital ship, and one in which to coniine prisoners. Four small cannon were also put upon lior decks, and she carried a jack and pennant. Some time prior to t lie following April, ono Trumbull came to the United States as an agent of the Congressional party, and about the month of April went to the city of New York, and there bought from one of the large mercantile firms of that city dealing in such matters 5,000 rides and 2,000,000 cartridges therefor, with the intention and for (lie purpose of sending them to the "Congressional party in Chile for use in their effort to overthrow the Balmacedan government. The sale and purchase of the arms and ammunition were made in the usual course of trade. Trumbull caused them to ho shipped by rail to San Francisco, and engaged one Burt to accompany thorn, which he did. Arrangements had boon made by Trumbull with his principals in Chile by which ihoy were to send a vessel to the United States to get the arms and ammunition, and convoy them to Chile for the use of the Congressional party there. The itata was dispatched by that party for that purpose, and was accompanied as far as Oajie San Tineas by tho, Esmeralda, a. warship then in the service of the Congressional party. Before leaving Chile, the Itata discharged tho four small cannon, with the ammunition therefor, that she had theretofore carried, hut she retained one small, brass gun, which she had always carried and used as a signal gun, and also eight or ten old muskets, and one small iron camion, tor which there was no ammunition. At one of ¡he Chilean ports the Itata took on board some soldiers, with their arms, not exceeding 12 in number; but they wore taken, not to bo used as soldiers, but for passing coal, and as stokers. At San laicas the captain of the Esmeralda took command of the Itata, and the captain of the latter was left there in command of the Esmeralda. The Itata then proceeded to San Diego, really in command of tiie Esmeralda’s captain, but ostensibly in command of another, who represented to the customs officers at the port That she was an ordinary merchantman, and was bound to some port on the northern coast. Before coming into the port of San Diego, or info the waters of the United States, the Itata liaulod down her jack and pennant; the brass and iron cannon were removed from her deck, and stowed in her hold, as were also the arms of the soldiers she carried; and their uniforms, as well as those of the officers, were removed, and all appeared in civilian’s dress. At that port she laid in stores of coal and provisions, all of which were bought in the open market, and some of which were marked ‘Esmeralda.’¶ Meanwhile Trumbull had chartered a schooner, called the Robert and Minnie, in San Francisco, to take the arms and ammunition from there to a point in this judicial distiict, then expected to be near the'island of Catalina, where she could meet the Itata, and deliver them on board of her, to be conveyed to Chile for the purposes already stated. The schooner Robert and Minnie accordingly took on board the arms and ammunition at the port of San Francisco, and, in charge of Burt, proceeded to the neighborhood of Catalina island, where she expected to meet the Itata. In the mean time the suspicion of some of the officers of the United States that the neutrality laws were being violated was aroused, and the marshal of this district was directed by the attorney general to detain the Itata if such was found to be the ease; and, acting upon those and certain instructions from the district attorney of this judicial district, he went on board the ship at San Diego, and put a keeper in charge of her, and then wont in search of the Robert and Minnie, which he did not find in the waters of the United States. Communication was, however, had between the Itata and the schooner, and a point near San Clemente island was fixed upon as the place of meeting for the purpose of transferring the arms and ammunition from the schooner to the ship. Accordingly, the Itata, on the 0th day of May, 189.1, without obtaining- clearance papers, and against, the protest of the person left on board and in charge of her by the marshal, weighed anchor, and steamed out of the harbor of San Diego, with him on board, to meet the Robert and Minnie, and receive the arms and ammunition. The marshal’s keeper was, however, put ashore at Point Ballast, before leaving the harbor. While steaming out of it, one or both of the Itata’s cannon were brought on deck, and some of the soldiers on board of her appeared in uniform. On the 9th of May the Itata and Robert and Minnie came together about a mile and a half southerly of San Clemente island, in this judicial district, and there the arms and ammunition iu question were taken from the schooner and put on board the ship in original packages, and the latter at once left with them for Chile. On September 4, 1891, the Congressional party was recognized by the government of the United States as the established and only government of Chile. Prior to that lime there had been no recognition of that party by this government, other than that on March 4th the secretary of the navy cabled Admiral McCami ‘to proceed to Valparaiso, and observe strict neutrality, and take no part in troubles between parties, further than to protect American interests.’ On March 2<3th the secretary of the navy cabled Admiral Brown, who had superseded Admiral McCami, ‘to abstain from proceedings in nature of assistance to either, — that is, the Balmaceda or Congressional party; that the ships of the latter were not to be treated as piratical so long as they waged war only against the Balma-ceda government.’ On April 25th, Secretary of State Blaine cabled the American minister: ‘You can act as mediator with Brazilian minister and French charge d’ affaires,’ On May 5th, Minister IOgan cabled this government: ‘Government of Chile and revolutionists have accepted mediation of the United States, Brazil, and France most cordially; those of England and Germany declined.’ On May 7th, Acting Secretary of State Wharton acknowledged the dispatch of Minister Egan, and ‘expressed hope that, through combined efforts of governments in question, the strife which has been going on in Chile may be speedily and happily terminated.’ On May 14th, Acting Secretary of State Wharton cabled Minister Egan that ‘French Minister reports threats to shoot the insurgent envoys by Balmaceda,’ and directed that they should have ordinary treatment under flag of truce.”

The contention of appellee is (1) that the Itata was not fitted out and armed, or furnished and fitted out, to cruise or commit hostilities, hut, on the contrary, she was a merchant vessel, engaged at the times referred to in the libel in the exercise of a lawful pursuit; (2) that if the Itata was fitted out and armed, or furnished and fitted out, such acts were not done with intent that she should be “employed in the service of any foreign prince or state, or of any colony, district, or people, to commit hostilities;'’ (3) that the ease made by the evidence is not within the statute; (4) that the subsequent recognition by the United States of the provisional government as the lawful government of Chile was, in legal effect, a recognition of all its prior governmental acts as the acts of a sovereign government.

It was conceded in the oral argument by the special counsel for the appellants, and we do not understand the attorney general, in his brief, to deny it, that Trumbull, acting as an agent for the Congressional party in Chile, had the lawful right to purchase the arms and ammunition in the United States; that this was purely a commercial transaction recognized by law. But it is claimed that, notwithstanding the fact that the purchase of the arms and ammunition was legal, yet the shipment of them for the purpose of being conveyed to Chile, there to be surrendered to the Congressional party for the purpose of being used by that party in a war against the Balmaceda government of Chile, which at that time was recognized by the United States as the lawful government of Chile, was an unlawful act, which justified the libel, and warranted a decree of court for the forfeiture of the vessel. If this contention is cor rect, it settles the controversy, for there can be no doubt but what the intent and purpose of the Itata, and of the persons having her in charge, was to convey the arms and ammunition out of the United States and to Chile, there to he delivered to the Congressional party for the purpose above stated.

If the Congressional party, as insurgents, are to be treated as belligerents, they not only had the right to buy the arms and ammunition in the United States, but they also had the right to ship them at their risk, subject only to the penalties of confiscation which the laws of war authorize. Commercial dealings or transactions are not proscribed by the laws of nations as violations of neutral territory simply because they are contraband of war. “It was contended on the part of the French nation, in 1798, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers. But it was successfully shown on the part of the United States that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry themselves to the belligerent powers, contraband articles, subject to the right of seizure in transitu. This right has since been explicitly declared by the judicial authorities of this country.” 1 Kent, Comm. 142; The Santissima Trinidad, 7 Wheat. 283; The Bermuda, 3 Wall. 514; Richardson v. Insurance Co., 6 Mass. 113. In a letter written hv Attorney General Lee to the secretary of state in 1796 it is said: “That an enemy may come into the territory of a neutral nation, and there purchase and thence remove any article whatever, even instruments of war, is a law of nations, long and universally established.” 1 Op. Atty. Gen. 61. In 1865 Attorney General Speed, in a letter to the secretary of state, said: “I know of no law or regulation which forbids any person or government, whether the political designation be real or assumed, from purchasing arms from citizens of the United States, and shipping them at the risk of the purchaser.” 11 Op. Atty. Gen. 452. In 1871, Attorney General Ackerman, in a letter to the secretary of state,¹ replying to a communication which had been received from the Spanish minister in relation to the expedition of the Hornet to the coast of Cuba, said: “Assuming the credibility of the sworn statements which he has transmitted, I do not think that they prove against the Hornet any violation of the neutrality laws of the United States. They show that the Hornet conveyed from Aspinwall to the coast of Cuba men, arms, and munitions of war, destined to aid the Cuban insurgents. This proof, by itself, does not bring the vessel within the third section of the neutrality act of April 20, 1818.” 3 Stat. 448. See, also,' letter of Mr. Pickering, secretary of state, to the minister of France, 1 Amer. St. Papers, 649; letter of Attorney General Rush to the president in 1816, 1 Op. Atty. Gen. 190; letter of Attorney General Speed to the secretary of state in 1865, 11 Op. Atty. Gen. 408; 3 Whart. Int. Law Dig. § 391, p. 515.

But the argument of the attorney general in support of his contention is to the effect that, the United States not having done any act tending to accredit the rebellion in Chile, the Congressional party had no belligerent rights; that all warlike acts conducted by them “upon the ocean bore the legal character of piracy, and upon land that of robbery;” that it was not the duty of the United States, under the rules of international law, to accord to them the same privileges as to the recognized government of Chile; and that there cculd not be any legitimate trade or commerce with such people until the government of the United States had recognized the insurgents as belligerents. The law is well settled that it is the duty of the courts to regard the status of the Congressional party in the same light as they were regarded by the executive department of the United States at the time the alleged offenses were committed. Gelston v. Hoyt, 3 Wheat. 246; U. S. v. Palmer, Id. 610; Kennett v. Chambers, 14 How. 51; The Ambrose Light, 25 Fed. Rep. 409. It being admitted that the government of the United States, at the time of the commission of the alleged unlawful acts, had not recognized the congressional party as being entitled to any belligerent rights, it would seem to follow that it was within the power of the government, at its option, to treat the party as pirates if the facts warranted it, and justice and policy so required. 3 Whart. Int. Law Dig. § 381, p. 466.

This view of the case presents the question whether section 5283 of the Revised Statutes has any application to persons or vessels whom it is optional with the United States to treat as pirates. If the statute was only intended to apply to cases of neutrality between two recognized belligerent countries, it would not, under the theory advanced by appellant’s counsel, have any application to this case, because, as they contend, there is “no question of neutrality, as that term is known in international law. which only exists between the belligerents, — a status composed of a rightful belligerent power or a de facto belligerent, force, made so by recognition.” We do not deem it necessary to decide the question as to the meaning of the statute in relation to this particular subject, but we do consider it proper that a reference should be made to the authorities in relation to this matter, as shedding some light, and making dearer the principles that will 1m discussed in relation to oilier questions upon which our decision will be has<*d.

In the oral argument, of counsel there was an extended discussion as to the proper meaning of the word “people” as used in the matute. This word is a eomxirehensive one, and is, of course, subject to many difierent meanings, depending always upon the connection in which if is used, and the subject-mailer to which it relates. The definition given in And. Law Diet, is: “Ordinarily, the entire' body of the inhabitants of a state, in a political sense, that portion of the inhabitant's who are intrusted with political poma-.” And in Rap. & L. Law Dict., among other definitions: “The state or nation in its collective or political capacity.” In Nesbitt v. Lushington, decided in 1792, involving the construction of a marine insurance policy, wherein liability was sought to be avoided under a danse of exceptions in the event of “arrests, restraints, and detainments of all kings, princes, and people of what nature, condition, or quality soever,” and the meaning of the word “people” as used in that clause was passed upon, “it appeared in evidence that the ship was forced by stress of weather into Elly harbor, in Ireland; and, there happening to he a great scarcity "of corn there at Shat time, the people came on board the ship in a tumultuous manner, took the government of her from the captain and crew, and weighed her anchor, by which she drove on a reef of rocks, where she was stranded.” Lord Kenyon, C. J, said: “That which happened in this case does not fall within the meaning of arrests, restrain!,-*,, and detainment of kings, princes, and people. The meaning of the word ‘people’ may be discovered bore by the accompanying words; noscitnr a sociis. It means ¡he ruling power of the country.” 4 Term R. 787. These definitions seem to be applicable to this case.

While the statute is penal and criminal in its nature, and should be strictly com.trued, still no technical view resting solely upon (be narrow or limited meaning of any particular word should be adopied if, hy the entire context, a different meaning appears to have been intended. The more fact that the section in question is found under a heading designated by the title of “Neutrality” is noi of itself eon (.rolling. The section should be construed in connection with, and in ilie Sight of, other provisions in other parts of the matute in relation to international subjects, although such statutes may be classed under different, headings, provided that, in the absence of such a division and classification, a comparison of all such provisions would he proper. End. liiterp. Bf. S 70, and authorities there cited. The causes which led up to the passage of the act “for the punishment of certain crimes against tbe United States,” (1 Stat. 381,) generally called the “Neutrality Act,” are set forth at great length in note 215 to section 439, Wheat. Int. Law. The third section, as originally enacted June 5, 1794, had the words: ‘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.” In 1818, from a suggestion of the Spanish minister that the South American provinces in revolt, and not recognized as independent, might not be included in the word “state,” the words “colony, district, or people” were added. The discussions which were had were in reference to the better preservation of neutrality, and in furtherance of the • obligation of the United States as a neutral power.

In Gelston v. Hoyt, 3 Wheat. 323, tlie court discussed the meaning'of the third section of the statute as originally enacted. “The evidence offered and rejected was to prove that the ship was attempted to be fitted out and armed, and was fitted out and armed, with intent that she should be employed in the service of that part of the island of St. Domingo which was then under the government of Petion, to cruise and commit hostilities upon subjects, citizens, and property of that part of the island of St. Domingo which was then under the government of Christophe,” and the court held that no forfeiture could be incurred unless Petion and Christophe “were foreign princes, within the purview of the statute,” and sustained the action of the court below in rejecting the evidence offered, upon the ground that “neither the government of Petion nor Christophe have ever been recognized as a foreign state by the government of the United States or of France.”

In U. S. v. Quincy, 6 Pet. 467, the court, in construing the provisions of the third section, as amended April 20, 1818, (section 5283, Rev. St. U. S.,) said:

“Tlie word ‘people,’ as liere used, is merely descriptive of tlie power in whose service the vessel was intended to be employed; and it is one of tlie denominations applied by tlie act of congress to a foreign power.”

In The Carondelet, 37 Fed. Rep. 800, Brown, J., said:

“Section 52S.1 is designed in general to secure our neutrality between foreign belligerent powers. But there can be no obligation of neutrality except towards some recognized state or power, de jure or de facto. Neutrality presupposes at least two belligerents; and, as respects any recognition of belligerency, i. e. of belligerent rights, the judiciary must follow the executive. To fall within the statute the vessel must be intended to be employed in the service of one foreign prince, state, colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of another with which the United States are at peace. The United States can hardly be said to be-at peace, in the sense of the statute, with a faction which they are unwilling to recognize as a government; nor could the cruising or committing of hostilities against such a mere faction well be said to be committing hostilities against the subjects, citizens, or property of a district or people, within the meaning of the statute. So, on the other hand, a vessel, in entering -die service of the opposite faction of Hippolyte, could hardly 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 íaction as at least constituting a belligerent, which it does not appear to hayo done.”

Opposed to these authorities is the letter of - Attorney General Hoar to the secretary of state, December 16, 1869, wherein he said:

•‘Undoubtedly the ordinary application oí the statute is to cases where the United States intends to maintain its neutrality in wars between two other nations, or where both parties to a contest have been recognized as belligerents; that is, as having a sufficiently organized, political existence to enable them to carry on war. But the statute is not confined in its terms, nor, it seems to me, in its scope and proper effect, to such cases. Under it, any persons who are insurgents, or engaged in what would be regarded under our law as levying war against the sovereign power oí the nation, though few in number, and occupying however small a territory, might procure the fitting out and arming of vessels with intent to cruise or commit hostilities against a nation with which we were at peace, and with intent that they should be employed in the service of a colony, district, or people not waging a recognized war.” 13 Op. Atty. Gen. 179.

In The Salvador, L. R. 3 P. C. 218, cited by appellants, the language of the foreign enlistment act, (59 Geo. III. c. 69, § 7,) referred to in the opinion, is much broader in its terms than is the language of section 3 of the neutrality act of the United States. That act reads: “In the service of any foreign prince, state, or potentate, or of any foreign colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of government in or over any foreign state, colony, province, or part of any province or people.” It was held that the case of The Salvador came within the alternative of section 7, “because their lordships found these propositions established beyond all doubt. There was an insurrection in the island of Cuba. There were insurgents who had formed themselves into a. body of people, acting together, undertaking and conducting-hostilities. .These insurgents, beyond all doubt, formed part of the province or people of Cuba, and beyond all doubt the ship in question was to he employed, and was employed, in connection with and in the service of this body of insurgents.”

With this review of the authorities we proceed to a consideration of what we deem to be the controlling question in this cast', viz. is the evidence sufficient to sustain the libel? The offense, if any was committed, depends, to a great extent, upon the preparations made on hoard the Itata, while within the limits of the United States. It is, of course, proper to consider what preparations were made, and what acts were performed, prior to her arrival within the limits of the United States, and her conduct, and the conduct of those having her in charge, after she departed from such jurisdiction, for the purpose of explaining or ascertaining the object which she had in view in coming within the limits of the United States, and her object in faking the arms and ammunition aboard; hut her guilt or innocence must be determined by the acts performed and the purpose she had in view while within the limits of the United States. This is the material question upon which the legality or criminality of the acts of the Itata must he decided, and the true character of her adventure determined. “As lias been often said, the intent described in this statute is a necessary ing'redient of the offenses created, in the absence of which no crime is committed, nor any forfeiture incurred. The crime necessary to be shown in order to forfeit the ship consists of an act done within the limits of the United States, when done with that intent, namely, the intent that the’vessel in connection with which the act is done shall be employed in the service of some foreign prince or state, or colony, district, or people, as a cruiser or committer of hostilities ■ against the subjects, citizens, or property of some foreign prince or state, or colony, district, or people, with whom the United States are at peace.” The Conserva, 38 Fed. Rep. 436. The testimony in this case, and the findings of the court thereon, in our opinion, clearly show that the Itata was not a war vessel; that she was not fitted out and armed, or attempted or procured to be fitted out and armed, or furnished and fitted out with intent to cruise or commit hostilities of any kind. The arms and ammunition that were taken from the Robert and Minnie and put on board the Itata were not intended for use by her for the purpose that she should be engaged in cruising or committing hostilities against the recognized government of Chile as charged in the libel. All the facts, which are clearly and fully presented in the findings of the district court, show that the arms and ammunition Avere put on board the Itata Avith the intent, object, and purpose to h ave them transported to Chile for the use of the Congressional party, and not Avith any intent that the Itata as a war vessel should in any manner be employed to cruise or commit hostilities against the government of Chile, with Avhom the United States Avere tlum at peace.

The cases relied upon by appellants to justify the libel in this case upon the ground that the United States had the right to treat the Itata as a pirate are not in point. In the first place, the libel was not instituted against the Itata on the ground that she Avas depre-dating upon the high seas, without authority from any sovereign power. “The libel for prize is founded upon the law of nations, and depends for proof upon the facts of her acts upon the high seas. The libel for forfeiture is for the violation of a municipal statute, and depends upon a set of facts and circumstances entirely different from that of piratical aggression. The offenses charged are separate and distinct, and the cause; of action is in no wise the same.” The City of Mexico, 28 Fed. Rep. 150. In U. S. v. Weed, 5 Wall. 62, where all the pleadings, testimony, and conduct of the case had been governed exclusively from its commencement upon the idea of prize proceedings, the court held that the property could not be condemned as for a statutory forfeiture, and that, where the case is prosecuted for forfeiture under a statute, it could not, in the appellate court, be considered as prize. In that case there was nothing, in the pleadings which alleged any fact rendering the property liable to confiscation under the ad.s of congress. The court said:

“Tt Avcmld seen; to viólale all rules of pleading, as well as all tlie rales of OA'iclence applicable to penal forfeitures, to hold that in such circumstances we can proceed to condemnation. The. right of the claimant to be informed b.v tli!' libel of till' specific aci by which lie or his properly lias violated ihe law, and to have an opportunity to 'produce witnesses, and to cross-examine those produced against him, are as fully recognized in the admiralty courts, in all except prize cases, as they are in courts of common law."

Under that decision and The Watchful, 6 Wall. 91, when a ship is libeled for prize, and the facts fail to sustain the libel, hut make out a strong prima facie cast' of a statutory forfeiture, it would be the duty of the court to remand ihe ease for a new libel; but under no circumstances could a ship be libeled for one offense, and have a decree entered against il for another distinct and separate often se.

In the next place, (he facts are totally dissimilar. Tn the case of The Ambrose Light, 25 Fed. Rep. 408, upon which great reliance is bast'd, tin' libel was filed to procure the condemnation as prize of ihe brigantine Ambrose Light, which was navigating as a Colombian vessel of war in the waters touching the coast, of the United Stab's of Colombia in the Atlantic ocean. Hhe was engaged upon a hostile expedition against Oartanegra, and designed to assist in the blockade and siege of that port, by the rebels against the established government of the United Htates of Colombia. Hhe belonged to Colonte, one of the chief military leaders of (he insurgents at Barra nepiilla. The legality of the seizure; depended upon ihe answer to be given to ihe inquiry whether the cruise; of the; vessel under the commission of the insurgent holders to assist in the so-called “block-aeie of Carfanegra'’ was to be; regarded, under the circumstances of rhe case', as lawful warfare or piratical. The conclusion of the e;ourt was “that the liability of (lie' vc*ssel to se'izure as piratical turns wholly upon the' question wind lien the; insurgents had or had not obtaine'el any previous recognition of be'llige'mit rights, ('ither from their own gemunnurnt or from the political or e'xec/utive department of any other nation; and that, in the absence; of recognition by any government what even*, the tribunals of ot.he'r nations must hoiel such expeditions as this to he te'chniemlly piratical.”

Why? Recause' in such a case' ii necessarily follows, as the court said, "that, in the absence of recognition by any govenmmnt of their belligerent rights, insurgents that send out, ve'sse'ls of war are, in legal contemplation, merely combinations of private persons engaged in unlawful depredations on (lie» high seas; that they are civilly and criminally responsible in the' tribunals for all their ads of violence; that in blockading ports which all nations are entitled to enter they attack the rights of all mankind, and menace' with destruction the lives and property of all who resist their unlawful acts; that such acts are, therefore, piratical, and entitle the ships and tribunals of every nation whose iniuresis are attacked or menaced to suppress, at their discretion, such unauthorized warfare by the* seüzure and confiscation of the vessels engaged in it.” There is no foundation for the application of such principle's to a case like* this, where the alleged offending ship was not a war ve'ssed, and had done no ae;t conne'ded with her voyage that indicated that she; had attacked, or intended to attack, any nation, or anybody, upon tlu; high seas or on land, or to engage in any warfare of any kind.

The argument of counsel for the United States in the Alabama Case, (3 Genera Arbitration, 8, 9,) which is relied upon and quoted at length in the brief of idle attorney general, had reference to the facts of that case. The Alabama was fitted out and armed in British territory, with intent to go on a cruise, and commit hostilities against the subjects, citizens, and property of a friendly nation. Moreover, that case was tried upon three rules, which were agreed upon between the two countries, England at the time denying that the rules correctly stated the law of nations, but consenting to be bound by them in that particular case. Dr. Wharton, in his notes to a chapter on “Breach of Neutrality,” which was to the effect “that it is no breach of neutrality for the subjects of a neutral state to furnish to a belligerent munitions of war,” (2 Whart. Crim. Law, § 1903,) said:

“It may be said that the three rules adopted by the treaty of Washington for the guidance of the Alabama arbitrators modify the conclusions of the text. Those rules are considered at large in the discussion of this topic by Mr. W. B. Lawrence, with which tbis chapter closes. So far as concerns the particular point in the text, it may be maintained that the conclusions of international law in this respect are not effected by the ‘three rules,’ for the following reasons: (1) These rules are only to be binding as rules of international law if accepted by the leading powers, which they have not been. (2) They are not binding as permanent and absolute rules on England and the United States, (a) because neither England nor the United States hare ever considered them to be so binding; and (b) because by the treaty that proposed them, as temporary rules of action, for guidance of a special and exceptional court, their permanent adoption is dependent upon their communication to the great European powers, which communication has never been made. This position is taken by Mr. Eish in his letters to Sir Ed. Thornton, of May 8 and September 18, 1876, as communicated by President Hayes in his message to the senate, of January 13, 1879; and there is no dissent of the British government recorded.”

In the notes referred to, written by Mr. W. B. Lawrence, it is said:

“The condition of belligerency would be infinitely preferable to that of neutrality, as defined by the conference of Geneva; and the due diligence prescribed would compel the United States, whenever they were neutrals, to maintain a naval police competent to cope with any belligerent forces throughout the whole extent of our coasts, both on the Atlantic and Pacific. By the repudiation of the three rules by their authors we are remitted to laws of neutrality as understood before tine attempt to define neutral obligations by municipal or conventional laws.” 2 Whart. Crim. Law, § 1908, p. 064.

In The City of Mexico, supra, there were two libels, — one for prize, which was dismissed, because the evidence offered failed to sustain it; the other was for the forfeiture of the ship for a violation of a municipal statute embodied in section 5283, Bev. St. In the course of the opinion it is said:

“It is true that vessels may frequently be engaged in transporting troops as passengers, and war material as freight, without themselves having any connection with the actual hostilities contemplated, so that their voyages in no way partake of the nature of hostile acts, nor they be liable to be charged with the commission of hostilities.”

There was testimony given by a number of the crew that “they were going to Honduras, and were to fight.” The decision in the case turned upon the conclusions of the facts by the court “that acts of hostility were contemplated and intended at the time of furnishing and fitting out the City of Mexico, in which she was to take an active part, and that: it was intended that she should receive arms and ammunition, and, in the language of the statutes, she should commit hostilities.” And it ivas upon this conclusion that the decree of forfeiture was entered.

The case of U. S. v. 214 Boxes, 20 Fed. Rep. 50, was dependent upon the facts presented in The City of Mexico. The case of The Mary N. Hogan, 18 Fed. Rep. 529, was similar in its fads. The Mary X. Hogan was not a war vessel, but there was testimony upon the part of the crew that “they were going t.o fight Hayfci, and would take in arms on the way.” The testimony was of such a character as to show to the satisfaction of the court that she was intended to Ik used for “such hostile demonstrations as she was fit to make against; the defenseless por is of the coast.”

It will thus be seen that the cases relied upon are clearly distinguishable from the case of the Itata. It is true that in (his case Hum were eliminating circumstances sufficient to arouse suspicion as to a hostile' intent on tin' part of the Itata. The sending of the war ship Hsmeralda as a convoy for a part of the way, the Itata being under the command oí a captain of the navy, with soldiers, cannon, and muskets on board; the concealment of the cannon; the change of dress of a, part of the crew; the failure to give the bond required by law; the circuitous methods adopted to take the arms and ammunition from the schooner Robert and Minnie,— are all proper circumstances to be considered, and were perhaps sufficient to cast, (lie burden of proof upon the Itata to establish her innocence by showing, as she did. that, notwithstanding these suspicions and criminating circumstances, she was not a war vessel; that she had done nothing, and did not intend to do any tiling, contrary to the provisions of section 5282; that she was not fitted out or armed, or attempted to be fitted out; or armed, or procured to be fitted out or armed or furnished, with intent that she should 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 were at, peace.”

The case of The Florida, 4 Ben. 452, was a libel against the vessel for an alleged forfeiture claimed to have been incurred by a violation of section 5282 of the Revised statutes, and in its facts bears a, closer analogy to the facts of this case than any of the other cases to which our attention has been called. The court said:

"Admitting that persons acting as agents of the Insurrectionary party in (Til'.a, were the real owners of the vessel and her cargo of arms and munitions of war. and that the transaction of the borrowing, by Darr from Castillo, of rlie money wherewith the vessel and her cargo were purchased, was a sham, and that the vessel was to proceed with her cargo to Vera, Cruz, and there the vessel and cargo were to be transferred by Darr, their nominal owner, ¡o persons acting for the insurrectionary party in Cuba, and that thence the vessel was to take the cargo to some point off the coast of Cuba, and land it on the shore by the use of rafts made out of the lumber on board, towed by the steam launch on board, through shallow water, to the shore, and that Darr and such real owners of the vessel and cargo had intent to do all this in fitting out the vessel, and putting her cargo on board, still a violation of fhe third section of the. aci of 1818 is not thereby made out. A vessel fitted out with intent to do this is not fitted out with intent to cruise or commit hostilities, within the sense of that section. * * * There is no satisfactory evidence that the vessel was furnished or fitted out or armed, or attempted to he furnished or fitted out or armed, with intent that she should he employed to cruise or commit, hostilities in the sense of the third section of the act, in the service of the insurrectionary party in Cuba, against the government of Spain. There 'is no evidence that she was intended to do anything more than transport her cargo to the const of Cuba, and cause it to be landed there on rafts, by the aid of the steam launch-on board. To do this was no violation of the third section of the ael, which is the one on which the libel is founded."

Having reached the conclusion that the evidence in this cast' is not sufficient to justify a decree of forfeiture against the Itata, it is unnecessary to discusfe the effect of the subsequent recognition by the United States of the provisional government as the lawful government of Chile, and upon that question we express no opinion.

The judgment of the district court, in both cases, is affirmed.

Footnotes

1

13 Op. Atty. Gen. 541.