JUDGE NELSON. Then it seems to me you may as well give up your case. If the mere sale of a vessel of war to the Chilian government by a citizen of the United States is not in violation of the act, then I cannot see how have you a case. How could they sell to the Chilian government, unless stores could be put on board for the purpose of carrying her home. MR. COURTNEY. That is the whole question in the case, and it is for your Honor to determine from the evidence whether she was not furnished, in violation of the act. MR. EVARTS. What objection was there to furnishing coal and provisions, in addition. MR. COURTNEY. Where is the production of proof of any sale of this vessel to any one. But JUDGE NELSON. That is one of my troubles in the case. the other seems to be so transparent here, that there is no evidence of fitting out, within the sense of the act, because there is nothing but the ordinary stores for a vessel, wholly independent of any hostile enterprise. MR. COURTNEY. Going where ? JUDGE NELSON. No matter. Going anywhere. MR. COURTNEY. Then all this testimony does not amount to anything? MR. EVARTS. JUDGE NELSON. MR. COURTNEY. Never did. Supposing no sale is proved. JUDGE NELSON. That is my own impression from the evidence you have read. I cannot see in this evidence that these owners were concerned in a hostile expedition against the government. If not, if there was no sale, and these owners were not concerned in a hostile expedition; it seems to me that is the end of the case. MR. COURTNEY. It is not necessary that the owners should do a single thing towards fitting out the vessel. The question is if the vessel was fitted out. And I propose to submit the case to the court fairly, upon the evidence and the law. JUDGE NELSON. These are the two points I will hear you on. One is upon the equipment, within the meaning of the act, and the other is upon the sale. These are the only points in the case I want to look at. MR. COURTNEY. Our theory, if your Honor please, is, that there was a conspiracy between all these parties, - Rogers, Mackenna, and all these men. MR. EVARTS. You do not mean the owners? MR. COURTNEY. Yes, I mean the owners, through your agent, Cary. He was at Wright's office, and had communication with the parties. MR. EVARTS. Why did you not call him? MR. COURTNEY. It was not our business. We made out our case. MR. EVARTS. If you did, of course it is all right. If you are satisfied with the evidence, I am. MR. COURTNEY proceeded to read the opinion of Judge Betts, as his brief in the case. On the point of conspiracy, he said: We take the ground that there was a common purpose upon the part of McNichols, Rogers, Mackenna, Conkling, and the other men, and that Cary, representing the owners of this vessel, was cognizant of what was going on, and was also a party to this transaction, so far as his agency would permit him to be so. We prove that this conspiracy existed, and the parties to the conspiracy, and I submit we have a right to show what one repeats about the other. That is all that has been done in this case. I suppose any act or declaration of either one of these parties, having relation to the common object, is admissible in evidence against the whole. JUDGE NELSON. But you have gone farther. You have proved what Rogers said Mackenna had said. MR. EVARTS. Rogers says, in so many words, he knew nothing about it, but he thought Mackenna had made another bargain. MR. COURTNEY. How are we to prove the declarations of conspirators? JUDGE NELSON. You must prove it by legal evidence. If you want to prove what one man has said, you must prove it by some one who heard him, and then it is good evidence against him and all the rest. But you cannot prove it by one man saying another said that he said it. MR. EVARTS. It is worse than that. It is what Rogers thought Mackenna had done. JUDGE NELSON. The principle that Judge Betts lays down is all right; but it does not cover the evidence that was allowed. MR. COURTNEY read his own points, in addition to Judge Betts's opinion, which he had used, as covering the whole ground. On the third point, he said: What have we done in this case? We have produced upon the stand every witness who knew anything about this transaction. We called the men concerned in negotiating with Cary, with Wright, with Mackenna, with Rogers, with every one of these parties: And I do again submit to your Honor, can there be any doubt, when you come to read the testimony and the law applicable to it, that it was the intention of these parties to furnish this vessel to be used on behalf of Chile against the commerce of Spain. Now it will not do for my learned friend here, with all his ingenuity, to come into court and say, "This amounts to nothing, -this connection of McNichols and all these parties: we were merely intending to do a legitimate business, and go on a regular commercial voyage to Panama." Is there not suspicion-to use the mildest term-hanging round all this transaction? If this thing was done in good faith, why was not Forbes put upon the stand to show that his voyage was a perfectly legitimate and honest voyage? Why was not Cary produced? Why were their mouths silent? I say there was ground of suspicion, to say the least, which required these claimants to show the honesty of this transaction, and the burden of proof was thrown upon these parties. Your Honor sees that this is a very important case, involving, at this stage of our history and nation as a government, very important questions of law under this neutrality act; and I do hope, as I believe, that your Honor will take this case and examine it carefully, and give such a decision as will be satisfactory to all parties concerned. We have no personal interest in this case. We are merely here to see that this neutrality law, if violated, is fully enforced, no matter whether against Mackenna or Rogers, or against these loyal men who, during our troubles, got up this vessel against the rebel cruisers. MR. EVARTS. I confess my inability to understand what illegal intent is supposed to be predicable upon this evidence against the owners of the Meteor. If it be conceded, as by the authorities and in the opinion of Judge Betts, that a sale might be made of a war vessel to the Chilian government, either in a home port or by sailing out to a foreign port, what significance is there when the owners may sell the vessel to a foreign government at war in adding 1 at war. that they sell it with the intent that the foreign government should use it? The owner has got a war ship; he sells it to a government That is all proper. But if he sells it with the intent that the government shall use it as a war ship, it may be seized. JUDGE NELSON. I cannot imagine a sale to a government at war that can be upheld upon that doctrine; because, while they concede there may be a sale to the belligerent, as a mere commercial transaction, of a war vessel, yet, if you connect with it that the vessel is known to be used by the belligerent against his enemy, then it is illegal. That I understand to be the doctrine of Judge Betts. I do not see, therefore, but that he virtually annuls the right to sell. Now I agree that there is abundant evidence to show the intent to sell to the belligerent. If that brings the case within the act of Congress, they have made it out,—that is, the intent to sell. But that the owners intended to be in any way participators in the employment of this vessel by the belligerent against his enemy and our friend, I do not think they had any such intention at all. They meant to sell. MR. EVARTS. They were ready to sell and receive an offer, which they never did receive. JUDGE NELSON. There is no evidence. The evidence goes to show they failed to get the bonds. MR. COURTNEY. The real solution is this: that McNichols and the others were cheated out of their commission, and McNichols did the business. JUDGE NELSON. It does not appear that there was any sale. The only purpose of these men was to sell the ship. They could not obtain here a sufficient security for the payment. Suppose the other view as a solution: that they then, with a view to sell to the Chilian government at Panama, got up this voyage, intending to sell there for cash or satisfactory security. Is that a viola.tion? MR. COURTNEY. We hold it is a violation of the third section, provided when they made the agreement to take her it was understood she was to be so used. MR. EVARTS. That is to say we had no right to take her to Panama and sell her, provided the belligerent, if he bought her, would use her. JUDGE NELSON. It is impossible to say that these owners took any interest in co-operating with or aiding the Chilian government in war with Spain, or are connected with that idea. But they were interested in selling the vessel, and the question is, had they a right to sell it here in this port to the Chilian government, simply as a business transaction? or, if not, had they a right to carry this vessel, in the condition she was in, to Panama, or any foreign port, for the purpose of there selling it to the Chilian government. It comes down to that. MR. EVARTS. Imagine either was true, which is the ut most extent, what criminality can be predicated of that? JUDGE NELSON. That is all there is in the case. It seemed to me to be settled law, that the mere sale of a vessel did not violate the act. I suppose you must connect with it a taking out of the vessel with the intent that she should be used against a friendly power. MR. EVARTS. In other words, that the neutral is let into the protection of our ports to send out a vessel to fight. And, without that idea, you cannot make any headway. JUDGE NELSON. So I supposed. But Judge Betts puts it upon the ground that, if the person selling the vessel, although not equipped with naval armament, knew that the purchaser would employ that vessel against a friendly power, then it is within the act, Adjourned to 11 o'clock the next day. Nov. 21, 1867. The Court (Nelson, J.) intimated that there appeared to be no controversy on the question that there was no sale of the ship here. There was an offer, and an intent to sell to the Chilian government, if they were willing to pay the price either down, or give proper securities; but it failed. MR. EVARTS. All that can be said about that is, that we wanted to sell our vessel to some one. These people never made us an offer. THE COURT. There is another point I do not want discussed, — which I am satisfied about, and that is that Byron, McNichols, & Co., who figure very much in the testimony here, and a good deal made out of it on the argument, as is apparent from their own evidence, had no connection with this vessel, otherwise than as employers, or runners, to procure a sale of it to the Chilian gov |