Mr. Cockrell's Argument for Appellees.

intent therein specified, by the offending persons so fitting her out; and of which acts and doings with such intent, the offending persons have been convicted; and forfeiture is denounced against no other than "such" vessel.

In seeking, under this libel, to make a case of forfeiture, independently of and without reference to the ascertained guilt of the offending persons, the Government insists that the vessel identified by the statute as such vessel, means the vessel so fitted out and armed with the intent denounced, but not a vessel in respect of whose fitting out and arming offending persons have been convicted; because, speaking through the learned District Attorney, it said, and was logically forced to say, the vessel may be liable to condemnation, under this statute, and the offending persons acquitted.

Under the statute, upon which this libel is based, no wrong doing in which the vessel is made the guilty instrument, is required to consummate the forfeiture. The guilty intent of the offending person is attached by the mandate of the statute to the vessel, and forfeiture is denounced because of this guilty intent. The original act, § 3, c. 50, act of June 5, 1794, lends strong support to the contention of claimants. In the structure of the section as originally passed, the language condemning the vessel to forfeiture, following upon the ascertained guilt of the offending person, was not separated from such ascertainment by the intervention of a semi-colon.

In the case of Gelston v. Hoyt, 3 Wheat. 246, it was argued, in this court, in March, 1817, by Mr. Hoffman and Mr. D. B. Ogden, for defendant in error, that "By every just rule of construction the proceeding by indictment against the offender and his conviction must precede the suit in rem and the forfeiture of the vessel. The phraseology of the act is different from all other statutes. By those statutes, the revenue officers have power to seize and proceed in rem against the thing seized as forfeited, independent of any criminal proceedings against the offending individuals. By this act the forfeiture of the thing is made to depend upon the conviction of the person, and the President alone has power to seize, and that only as a precautionary measure, to prevent an intended violation

Mr. Cockrell's Argument for Appellees.

of the laws." The case stood over for reargument, and was reargued February 23d, and decided February 27th, 1818. The act in its present form was enacted April 20th, thereafter, and although the argument of these gentlemen prevailed on other propositions hereinafter discussed, and the court was not required to pass upon this special contention, it could not have escaped the attention of the Congress when in April, 1818, this statute was subjected to revision. If, in this revision, Congress had purposed to authorize a seizure and forfeiture of the thing, independent of any criminal proceedings against offending individuals, it was its duty to have recast the phraseology of the statute and put it in harmony with other statutes empowering revenue officers to seize and proceed in rem against the thing seized for forfeiture.

The libel excepted to, not only fails to allege that the necessary criminal intent of the offending persons has been in anywise ascertained; it does not even show who the offending persons are.

The language of the statute clearly shows that the act of arming must be accompanied with the specific intent therein. denounced, to consummate the offence. It follows the specific intent must be laid in the identical persons, and none other, so fitting out the vessel.

The word "people," as used in this statute, was defined in United States v. Quincy, 6 Pet. 445, to be merely descriptive of the power in whose service the vessel was intended to be employed; and it is one of the denominations applied by the act of Congress to a foreign power.

It follows that the word, "colony," and the word, "district," each is, also, descriptive of the power in whose service the vessel is to be employed; each is, also, one of the denominations applied by the act of Congress to a foreign power. It is equally clear that the added words, "colony, district or people," do not mean a part of a colony, a part of a district, or a part of a people or many people. They mean a colony, district or people, constituting a body politic, that is charged with recognized political power, a foreign power.

That it had been attempted to import into section 5283,

Mr. Cockrell's Argument for Appellees.

the effect given to sec. 7 of the Foreign Enlistment Act, 59 George III, in the numerous cases, and the discussions thereof, arising thereunder, could not, it is presumed, have escaped the attention of the Supreme Court; the Itata case had been before it on application for a writ of certiorari; nor was this court unaware of the recommendations of President Harrison to Congress based on the decision of the Itata case; nor was it unaware that the Congress had failed to respond to those recommendations, when in May, 1896, in the Wiborg case, 163 U. S. 632, it analyzed the sections grouped under the title Neutrality Laws.

It is apparent that this court in the Wiborg case brought in opposition and contrast the eleven sections from 5281 to 5291, for the purpose of defining and ascribing to each its appropriate functions in the statutory system thereby enacted, and declared that "section 5283 deals with fitting out and arming vessels in this country in favor of one foreign power against another foreign power with which we are at peace."

The court, after this analysis of the sections commented on, proceeds to set forth in terms section 5286, under which Wiborg was indicted. And in the analysis of this section, the court makes it apparent, from its terms as contrasted with section 5283, theretofore quoted also at length, that section 5286, while its general purpose "was undoubtedly designed to secure neutrality in wars between two other nations, or between two contending parties recognized as belligerents, its operation is not necessarily dependent on the existence of such state of belligerency."

That this language applies to section 5286, and not to section 5283, is obvious not only from the context, but also because section 5286 was the only section under consideration. Its meaning and application of the facts under consideration were to be ascertained by reference to the statutory system as a whole; and the court demonstrated, that though this section was placed under Title LXVII, headed neutrality, and though it did tend to secure neutrality in wars between foreign powers or recognized belligerencies, its operation was not necessarily dependent on such a recognized state or status of

Mr. Attorney General's Argument for the United States.

belligerency. And the court enforces this reasoning by reference to its language following as it does the recommendations of President Washington.

Mr. Attorney General for the United States.

In view of the hour [it was then past the usual time for adjournment], I will not make an extended argument. A few remarks upon the illustrations made by Mr. Phillips will serve to bring out the difference between my position, as I understand it, and my position as put by him.

Before doing this, however, I call your Honor's attention to the exact form of the entry of the judgment below: that if the libel be not amended within ten days the same stand dismissed.

The counsel on the other side contend that the United States Attorney had to wait ten days before deciding whether he wanted to amend or not. We say that he could immediately state to the court that he did not wish to amend, and that by appealing he did so state, and that the libel thereby was dismissed.

It is also contended that the libel should have been dismissed because it was brought before the successful prosecution of the persons who had fitted out and armed the vessel. It seems to be plain upon the very reading of the statute that two penalties are to follow from a certain act; first, that every person who shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out or arming of any such ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign prince or state or of any colony, district or people, to cruise or commit hostilities, shall, upon conviction, be adjudged guilty of a high misdemeanor, and shall be fined and imprisoned and, secondly, every such ship or vessel shall be forfeited not upon the conviction of the offending person, but upon the doing or procuring to be done the acts.

The counsel who first addressed the court on the other side,

Mr. Attorney General's Argument for the United States.

in speaking of the old insurance case of Nesbitt v. Lushington, 4 T. R. 783, supposed the case of a ship which was insured under a policy containing a provision for insurance against "restraints and detainments of all kings, princes and people." A moment's attention to this case will illustrate the exact point here under discussion.

I am not willing to admit, in view of the amendment made to the act of 1794, by adding to the words "prince and state," which covered every form of organized government, the words "colony, district or people," and in view of the historical facts attending that amendment, that the language of our statutes is to be governed by the rules of construction applicable to such policies of insurance.

But, assuming for the purpose of what I have to say, that the question of what are "a people" would be the same under our statute as it would be under a policy of insurance such as was involved in that case, here are the facts involved in Nesbitt v. Lushington. It appeared in evidence that a ship was forced, by stress of weather, into Elly Harbor, in Ireland. There happening to be a great scarcity of corn there at that time, the people came on board the ship in a tumultuous manner, and 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 stranded; and they would not leave her until they had compelled the captain to sell all the corn except about ten tons, at a certain rate, which was about three fourths of the invoice price.

Now, what picture does that present? It presents no picture of an attempt to set up a government, or even of an attempt to overthrow an existing government, save in so far as the act which they did was lawless, and therefore in temporary defiance of the laws of the government which had jurisdiction there.

But suppose the same ship landed upon a point on the coast of Cuba, where General Gomez or any other Cuban leader was in control, and the vessel had been seized and her cargo confiscated for the support of the insurgent forces. Would that present the same case as the case in the 4th Term