ernment, for the sake of the commission. That is all there is in that.

MR. EVARTS. They acting for the Chilian government, and not for the owners of the vessel.

THE COURT. I do not care much about that. They were desirous to bring about a sale for the sake of the commissions, and they finally quarrelled with the employers, because they thought they were cheated out of their commissions. But they had no connection with the fitting out of this vessel. I lay that all out of view. There is another thing I lay out of view, that does not require any argument in the case, and that is, there is no proof that the proprietors of the Meteor were engaged in fitting out and furnishing this vessel, for the purpose of employing her in the service of the Chilian government against Spain. That you (Mr. Evarts) need not trouble yourself with. They desired to sell; but they had no desire to go into that service. There is no evidence that they had any such purpose. It seems to me that the case is brought down to this, as there was no sale: whether or not there was a fitting out of the vessel to the extent contemplated in the act of 1818. She seems to have been furnished only with stores and fuel. No arms, no munitions of war. No doubt she was fitted out in that way, with the intent to carry the vessel to Panama, and there, or at some other place, to sell her to the Chilian government, if they could, or anybody else; knowing, if they sold her to the Chilian government, that she would be employed in the war between Chile and Spain. If that is a violation of the act of 1818, they have made it out; but if it is not, no. Now all I desire to hear upon this subject is upon that point.

MR. EVARTS. How could they know she would not be employed as a transport, which was lawful?

MR. COURTNEY. We say that the evidence shows they did know.

MR. EVARTS. I suppose, if your Honor please, you have correctly stated the question, perhaps giving a greater impression to the evidence, as indicating a committal of the owners and a desire to sell this vessel, than it will bear. And it seems to me that the statement of the proposition is its own answer, when you bear in mind that, from the earliest history of our government, the sale of vessels of war has been left untrammelled, and purposely left un

trammelled. Because it is folly to say that you can sell a vessel of war to a belligerent, and your guilt depends upon whether you know the belligerent will use it or not, when your knowledge of his intended use can be no more than your knowledge that a man who buys a thing for use will use it, when there is no engagement that you are to advance or assist him in the prohibited use. Now the case of the United States v. Quincy, it seems to me, ought to dispose of this question of intent. It is to be found in 6 Peters, 445. I have it in the form of an appendix to the Alexandra case. Now there are two great questions discussed there. This case has been brought to your Honor's notice in the opinion of Judge Betts, read in the argument of my learned friend, upon one of the two topics which it discusses, to wit, the topic of how far it was necessary that the unlawful action upon the vessel or the unlawful project of action on the vessel should extend in its compass, in order to make personal participation in the general unlawful project criminal on the part of such a participant.

And now for the present we will not discuss that topic at all. But the other great point in this case was how far the intent of unlawful enlistment, or employment on the part of those sought to be inculpated, must extend and be completed within the United States, before the expected sailing of the vessel; and there the ruling of the court was as explicit and distinct as it could be, that commercial dealing, commercial purposes, in other words, an intent on the part of the outfitter or owner to make a market for his ship, if it were even an alternative in his mind when the ship sailed, left the guilty intent incomplete, for then it was commercial and lawful, and not belligerent, and so no violation of neutrality. The case came up on a certificate of difference of opinion, and therefore we have in the most definite form the propositions insisted upon on the other side, and the opposite ones, and the determination of the Supreme Court, in the form of distinct legal propositions. The question of the intent necessary to the completion of the crime of the Statute was directly passed upon in the most definite, precise, and peremptory form, viz. in the instructions directed to be given to the jury to govern their finding of intent. The Court says:

"The second and third instructions, asked on the part of the defendant,

"That, if the jury believe that when the Bolivar was fitted and equipped at

Baltimore, the owner and equipper intended to go to the West Indies in search of funds with which to arm and equip the said vessel, and had no present intention of using or employing the said vessel as a privateer, but intended, when he equipped her, to go to the West Indies to endeavor to raise funds to prepare her for a cruise, then the defendant is not guilty.

Or, if the jury believe that when the Bolivar was equipped at Baltimore, and when she left the United States, the equipper had no fixed intention to employ her as a privateer, but had a wish so to employ her, the fulfilment of which wish depended on his ability to obtain funds in the West Indies, for the purpose of arming and preparing her for war, then the defendant is not guilty. We think these instructions ought to be given. The offence consists principally in the intention with which the preparations were made. These preparations, according to the very terms of the act, must be made within the limits of the United States; and it is equally necessary that the intention with respect to the employment of the vessel should be formed before she leaves the United States. And this must be a fixed intention, not conditional or contingent, depending on some future arrangements. This intention is a question belonging exclusively to the jury to decide. It is the material point on which the legality or criminality of the act must turn; and decides whether the adventure is of a commercial or warlike character. The law does not prohibit armed vessels belonging to citizens of the United States from sailing out of our ports; it only requires the owners to give security (as was done in the present case) that such vessel shall not be employed by them to commit hostilities against foreign powers at peace with the United States. The collectors are not authorized to detain vessels, although manifestly built for warlike purposes, and about to depart from the United States, unless circumstances shall render it probable that such vessels are intended to be employed by the owners to commit hostilities against some foreign power at peace with the United States.

"The collectors are not authorized to detain vessels, although manifestly built for warlike purposes, and about to depart from the United States, unless circumstances shall render it probable that such vessels are intended to be employed by the owners to commit hostilities against some foreign power at peace with the United States.

"All the latitude, therefore, necessary for commercial purposes, is given to our citizens; and they are restrained only from such acts as are calculated to involve the country in war." (United States vs. Quincy, 6 Peters, 465-6.)

Now your Honor sees, we take an innocent pilot-boat, and show actual physical changes made upon her, towards her being able to sail as a privateer. We show her emission from that port, with such aids, helps, and arrangements, adaptability to, and utility in a privateering cruise as indicates such a probability. We show her then gone to St. Thomas, and then to another West India port, and then assuming the condition of a privateer in the service of a foreign state, and a commission given before sailing for that pur

pose. Now, as the vessel was not armed in any proper sense before it left Baltimore, the legal point was made and much discussed, that, as the body of the crime which inculpated those concerned in it was the fitting out and arming, any secondary or subordinate engagement which did not include fitting out and arming was not embraced.

If your intent was formed to be a hostile participant in the war, you, having that purpose and intent, did not escape criminality by subsequent disappointment or defeat in your purpose having prevented it being done. But on the other hand, if you had no other intent than to go out with your armed ship, and see whether you could find the means of making yourself a participant in the hostilities, then the intent was not formed, and you are not guilty.

Now, as I said, it seems to me that goes altogether beyond anything that can be said concerning the purpose and venture of the owner of a vessel seeking a market that his property should become the property of the belligerent; and the Court say it is the distinction whether, when your vessel takes its departure, your purpose is commercial, or whether you participate in the belligerent activity of the party you seek to aid. This ranges itself under the general proposition that our Neutrality Act is intended to prevent the belligerent from getting within our territory and fitting out either for military or naval depredations.

Now the largeness of his army, or the largeness of his navy, the amount and degree of array and combination of his army, and the degree of sufficiency of the naval warlike preparation made under the cover of our ports from which the sally is made, is not material. They must be acts of warlike fitment, as I contend; but the degree of warlike fitment, planned or executed, is not material, provided it is a belligerent act which you aid and favor against the purpose and intent of this law. But to show it is an act of a belligerent in which you favor and assist him, or in which he acts through you, there must be an intent, not to sell an armed ship abroad, but an intent that your ship, as it goes out from here, is to take part in the hostilities, and that the getting out from here liberates her from the neutral control, and sets her out on the seas as a belligerent of the party which we have prohibited from using our ports. All this was taken for granted in the discussion concerning the Alexandra. There there was a necessity for showing

that the Confederate States were themselves engaging, setting forward, promoting this preparation within the realm of England, of a vessel suitable for war purposes, having some degree of warlike adaptability or fitness, that was to be, by the terms and conditions. under which it was prepared, at their service when she got out of port. And the fact was so, as we all know. Everything that did go out of Great Britain did go out with that purpose. The moment she was out of the port, she was at the service of the Confederate States.

I do not wish to insist upon any further discussion than is satisfactory to your Honor.

JUDGE NELSON.

That is all there is in the case.

MR. EVARTS. I ought to say that there is nothing indistinct or obscure in this condition of our law. I call your Honor's attention to the bill of the act of 1817, as it was introduced into Congress, -5th Benton's Debates, p. 685. We have the act of 1794, which was limited in its duration. In 1797 another act was passed, which made the legislation permanent. In 1817 additional provisions, better to secure neutrality, were proposed, and were introduced into the act of 1818, which is our final form of codification of our neutrality provisions; in reality, putting together the act of 1794, as repeated in 1797, and the act of 1817, so that the act of 1818 had no new thing about it. The discussion of policy as to what our government should do was determined by the legislation of 1817, and the act of 1818 was reducing to one act the provisions of other acts. The bill was introduced in this form: "A bill to prevent the citizens of the United States from selling vessels of war to the citizens or subjects of any foreign power, and more effectually to prevent the arming and equipping of vessels of war in a port of the United States, intended to be used against nations at amity with the United States."

[Counsel reads first section of bill of act of 1817.]

"SEC. 1. Be it enacted, &c. —

"That if any citizen of the United States shall, within the limits of the same, 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 any private ship or vessel of war, to sell the said vessel or contract for the sale of the said vessel, to be delivered in the United States or elsewhere, to the purchaser with intent or previous knowledge, that the said vessel shall or will be employed to cruise or commit hostilities upon the subjects, citizens, or property of any