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tent, but assuming intent proved, any kind of equipment is within the section. Baron Channell thus expressed himself :
“ I agree with the Chief Baron and Bramwell in thinking that what the statute forbids is equipment for war. I agree with them in thinking that the main object of the statute is to prevent our ports from being made stations of hostilities. Our difference appears to be this : that they think that the equipment must be intended to be completed, so that the vessel, when she leaves our port, shall be in a condition at once to commit hostilities; while it seems to me that, in a fair and reasonable meaning of the words used, another case is included, to wit, when the equipment, not being ample to that extent, is yet capable of being used for war, and the intent is clear that it is to be used for war."
This sentence expresses the difference of opinion which divided the Court.
I have thus, with your Honor's permission, alluded to the case of the Alexandra, in order to repel, at the threshold, all efforts of the learned counsel opposed, to draw from that case any conclusions which can aid this Court in coming to a correct determination in respect to the third section of the act of 1818.
In the first place, there was in England an irrepressible conflict as to what instructions, as matter of law, the Lord Chief Baron gave to the jury.
In the second place, when the question came by appeal before the Exchequer Chamber, two of the learned judges took the view of the law for which I have the honor now and here to contend.
In the third place, nothing can be argued in this Court from any admissions which the Attorney or Solicitor General in England may have made in the Alexandra case, in respect to the interpretation to be put on the seventh section of the Foreign Enlistment Act of 59 George III. These admissions were made for the personal or political convenience of those who offered them, and not solely with a view to the ascertainment of legal truth. In the case of the Solicitor-General, his admissions were but the necessary sequence of doctrines announced in March, 1863, in the House of Commons, in reply to a powerful speech arraigning the Queen's government for the sympathy with the Confederates, which was to be inferred from the failure to arrest the privateers fitting out in English docks to cruise against American commerce.
In the fourth place, the government of the United States has, through its appropriate channel, all along, stoutly resisted the interpretation that the vessel must be armed before she leaves this country, — must be fully armed as a man-of-war, within the jurisdiction of the United States, in order to be within the denunciations of the clause of the third section of the act of 1818, now under consideration, or the seventh section of the British Foreign Enlistment Act.
At any rate, the Attorney of the United States (Mr. Dickinson) acted upon that interpretation of the act of 1818, in detaining the Meteor, and the President approved and commended his conduct in that relation. The complaint and affidavits in respect to the inculpated steamer, presented in New York by the Spanish consul to the law-officers of the federal government, left no other course
open to him.
Having been duly forewarned, the Attorney of the United States believed that if he had omitted proper measures to prevent the departure of the Meteor, the government of Spain could have justly held the United States, from whose ports the steamer would proceed to sea, responsible for all the damages and losses Spain might sustain by the depredations of the vessel in question.
In all this, there has been no expression of sympathy, or preference, for either of the warring nations, with both of whom the United States are on terms of amity and peace. On the contrary, there has been effort to preserve an honest neutrality.
It is indisputable that the Spanish consul in this port had a claim upon the law officer who exercises the legal authority of the United States in this federal judicial district, and upon the Marshal, to prevent the departure from our shores of an illegal enterprise, or expedition, against the subjects or property of Spain. That nobody will deny. The Minister of Chile, in Washington, has an equal claim, and when presented, it will be recognized and enforced by the whole power of the government, put forth in its maintenance on proper case made. Impartial neutrality will be meted out to both belligerents.
The government will now proceed to lay before the Court the proofs 'upon which the Meteor was detained, in full confidence that its action will be sustained by the judicial authorities of the land.
It will be in evidence that Mackenna, a confidential, but yet somewhat communicative agent of Chile in New York, and Rogers, a consul in this city of the same government, did procure agents to obtain, furnish, and fit out the Meteor, to be used as a Chilian privateer. It will also be in evidence that William H. Cary, and persons controlling the steamer, knew that these Chilian agents were concerned in thus fitting out the Meteor, and were willing and did aid therein, for a certain pecuniary consideration. The proof before the Court will be conclusive in respect to the construction and formidable character of the Meteor as a war vessel. She was built to cruise as a vessel of destruction. She was designed to be the most powerful and effective privateer which the naval architects of America, the money and enterprise of Boston and New York, and the engine-builders of Scotland, could produce, and the result equalled every reasonable expectation. Upon the point of her construction, and fitness for war purposes alone, the Court will have the amplest evidence from one of her claimants, Mr. Robert B. Forbes. This evidence relieves the present case of a part of the difficulty of proving her a war vessel which surrounded the Alexandra. It will be demonstrated that the Meteor is, by reason of her great relative cost and small carrying capacity, next to useless as a peaceful trader, and, therefore, must be disposed of as a privateer. The facts in the case are few, and the real issue is simple and narrow. It is; First: Were any persons, within the limits of the United States, concerned in furnishing or fitting out the Meteor ? Secondly: Were these persons so concerned with intent that the Meteor cruise, or commit hostilities, in the interest of Chile, against Spain ?
Upon the point, that the innocence of the owners cannot withdraw the vessel from the penalty of confiscation, I call the attention of the Court to the following cases : The United States v. The Schooner Little Charles, 1 Brock. 347; The Palmyra, 12 Wheat. 1; United States v. Brig Malek Adhel, 2 How. 210.
I have already had occasion to call the attention of your Honor to the contemporaneous passage by Congress, and approval by the President, of the Neutrality Act, and the Slave-Trade Act of 1818, and also to the similarity of language used in respect to the fitting out and intent. In interpretation of the act for the prevention of the slave-trade, your Honor has had occasion to lay down certain rules of presumption in respect to the question of intent; and the Supreme Court of the United States, at its sitting in December, 1864, confirmed the correctness of the doctrine expounded by your Honor in the case of the Kate, reported in the second volume of Wallace, p. 350. In that case, your Honor, in this Court, said that, “in support and in accordance with the doctrine, when the evidence, on the part of the government, creates strong suspicions, or well-grounded suspicions, that the vessel seized is being employed in the slave-trade, or fitted out, or fitting out for that purpose, the decisions in this Court have been uniform and distinct, that such evidence must produce a conviction and condemnation, unless rebutted by clear and satisfactory proofs on the part of the claimants, showing her voyage to be a lawful one."
On the argument before the Supreme Court, the learned counsel for the claimants endeavored to enforce the doctrine that the burden of proof is upon the government, to show affirmatively that the vessel was fitted out for the purpose of carrying on the slave-trade, and that the legal presumption was, that the fitting out of the bark was for a lawful purpose. The main point submitted to the Supreme Court was the presumption of innocence or guilt, and the Chief Justice, in delivering the opinion of the Court, very properly repelled the proposition of the claimants of the vessel, and affirmed the rules laid down by your Honor. We ask, therefore, with confidence, that the same rules of evidence be applied in the case now at bar. It is not as atrocious and heinous to violate the neutrality law of the United States as it was to violate the Slave-Trade Act, by importing human beings from Africa; but he is no ordinary offender who, for purposes of commercial gain, deliberately embarks in operations, the end of which may be involvement of his country in a foreign war, with all its multiplied and multiplying trials. There is quite as much necessity for secrecy, in order to successfully evade the neutrality law, as there was the slave-trade law, and, on that account, there is the same reason that your Honor should throw the burden of the proof upon the claimants, in the case now at bar, as there was in the case of the Kate.
With this very imperfect opening of questions of law and fact involved in the case of the Meteor, we shall come to the testimony of witnesses ; and if, in the end, the judicial tribunals of the land shall decide that no persons were concerned in fitting out the Meteor, with intent that she should cruise or commit hostilities in the interest of Chile, against Spain, the executive department of the government will have discharged its duty of neutrality under our municipal law, and with sincere pleasure will the District Attorney restore the steamer to her proper owners. If, on the other hand, the Meteor be condemned, her owners will have the satisfaction of feeling that their government, in both its executive and judicial departments, has not failed in its duty of neutrality, but has prevented the exit of a privateer to scourge the seas, after the manner of the Alabama and Shenandoah, for the destruction of which Anglo-rebel pirates the Meteor was, with so much patriotic emotion, originally constructed.
TESTIMONY OF WILLIAM JARVIS.
William Jarvis sworn. Examined by Mr. Webster.
Q. You are a deputy attached to the Marshal's office ? A. Yes, sir.
Q. Did you, under orders from the Marshal, arrest the steamship Meteor ? A. I did.
Q. Do you remember the date ? A. The 23d of January.
Q. In what condition did you find the steamer when you arrested her? A. Getting ready to go to sea.
Q. Did you find any person on board besides the officers and crew that you knew? A. The captain was not on board ; I served a notice on the mate.
Q. Besides the officers and crew, whom did you find on board, if any one ? A. I saw Mr. Forbes.
Q. Which Mr. Forbes ? A. This gentleman, Robert B. Forbes.
Q. Did Mr. Forbes make any statement to you as to where she was going, or in your presence ? A. Mr. Forbes stated that he was sorry he missed his trip down to the Narrows in the boat; he made that remark to the mate.
Q. Did Mr. Forbes have any luggage or anything? A. He called for his carpet-bag; it was a black carpet-bag; a young man fetched it to him, and he took it ashore with him.
Cross-examined by Mr. Evarts.
Q. How long have you been connected with the Marshal's office ? A. I think it will be three years next June.
Q. Where was the Meteor lying? A. At Brooklyn, at Prentiss's dock, south of Wall-Street Ferry.
Q. Close to Wall-Street Ferry ? A. Yes, sir.
Q. So that everybody who went along on that ferry could have seen the Meteor ? A. Yes, sir, I believe so.
Q. She was stern out, with the name on her, “Meteor, of Boston?” A. She was.