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though she is not yet complete, and the intention is to send her to a foreign port for completion.
Mr. Evarts, Sec. of State, to Mr. Sullivan, Feb. 21, 1878, 121 MS. Dom.
1878, 123 MS. Dom. Let. 192.
An expedition, organized in parts, and dispatched from the United States, to meet at a common rendezvous on the high seas, and thence proceed to acts of hostility against a friendly power, is within the prohibition of section 5283, Revised Statutes, and a vessel fitted out in the United States at such rendezvous is liable, under that section, to seizure and forfeiture for a breach of the neutrality laws.
The Mary N. Hogan, 18 Fed. Rep. 529.
and the other half to the use of the United States. The Haytian
I. 327, 328.)
Mary N. Hogan, and the arms and munitions of war on board were
1883, id. 313.)
having arms for the Haytian insurgents, Mr. Frelinghuysen, Sec. of State, to Mr. Preston, Nov. 22, 1883, MS. notes to Hayti, I. 317.
The schooner 1, with a cargo for Richmond, received on board at New York certain cannon, muskets, and ammunition with orders, on being hailed by concerted signals, to put them off near the Virginia capes. But owing to seizure at New York of the steamer Morgan (which was to take them to Hayti to aid the insurrection there) the I was not signaled, but proceeded with them to Richmond. Held, that they were liable to libel for forfeiture, under $5283.
United States 1. Two Hundred and Fourteen Boxes of Arms, 20 Fed.
To render a vessel subject to forfeiture for a violation of the neutrality laws, it is not necessary that she should have been armed or manned before leaving the United States, if the intention existed to arm and man her afterwards.
The (ity of Mexico, 28 Fed. Rep. 148
A possessory action in admiralty was brought against the collector of customs at Pensacola, Florida, for refusing during the insurrection of 1895 in Cuba to restore the papers of a steam tug because her nominal purchaser, who was described in the bill of sale as a trustee, refused to show by affidavit the name of the person for whom he was trustee. The papers were taken possession of by the collector by order of his official superiors. Subsequently, the steam tug having remained tied up at the wharf, he permitted her to engage in her usual business in Pensacola Harbor, a United States inspector of customs remaining on board. It was held that the action of the collector in withdrawing the papers, in which the nominal purchaser was described as trustee without indicating for whom, was lawful; that the possession of the owners had not been ousted, there having been no seizure by the collector; and that the court below, which had made a decree for damages in favor of the owner of the steam tug, had no jurisdiction in the case, and that the action must be dismissed.
The Monarch, 62 U. S. App. 622; same case, Brent v. Thornton, 91 Fed.
The forfeiture of a vessel proceeded against under $ 5283 of the Revised Statutes does not depend upon the conviction of the person or persons charged with doing the forbidden acts.
A suit in rem, for forfeiture or condemnation of the vessel only, is a civil action, and not a criminal prosecution.
The Three Friends, 166 U. S. 1, 49 (1897).
A libel under $ 5283, Revised Statutes, did not charge that the vessel was“ fitted out and armed, or attempted to be fitted out and armed, with intent," etc., “ within the limits of the United States," but charged in one count or article that she was “heavily laden with supplies, rifles, cartridges, machetes, dynamite, and other munitions of war, including one large twelve-pound Hotchkiss gun or cannon, and a great quantity of shot, shell, and powder therefor, with intent," etc., and, in another count, that she was fitted out and armed by being heavily laden with supplies, rifles, cartridges, with intent,” etc.“ The libel," said the court, “is certainly not drawn with such legal precision and conciseness as to justify its use as a precedent, but taking it as a whole, and considering that the objections urged were not passed upon in the lower court, and, if passed upon adversely to the Government, the libel is plainly amendable, we are of the opinion that the exceptions urged should not be allowed in this court."
United States 1. The Three Friends, 85 Fed. Rep. 424; 29 C. C. A. 244; 52
I'. S. App. 571, 576-577.
(4) ACTS NOT WITHIN THE STATUTE.
An American-built vessel, the Hector, having been fitted out and commissioned at Charleston by Genet as the French privateer Vainqueur de la Bastille, went to sea and then returned to the United States, and was detained and dismantled by the United States Government at Wilmington, N. C. She then sailed thence unarmed as a foreign vessel, but was equipped and commissioned at Hayti by the French authorities. She went again to sea, and brought a prize, the Betsey, into Charleston in 1795. It was held, that, under the circumstances, the fitting out by aid of which the capture was made, was not in contravention of law.
The Betsey, Bee, 67.
The fitting out and arming a vessel in anticipation of war is not a violation of neutrality.
Moodie 1'. The Alfred (1796), 3 Dall. 307..
It is not a violation of the neutrality laws of the United States to sell to a foreigner a vessel built in this country, though suited to be a privateer, and having some equipments calculated for war but frequently used by merchant ships.
Moodie v. The Alfred, 3 Dall. 307.
Referring to your despatch, No. 875, upon the subject of building a certain number of launches in the Kingdom of Great Britain for the use of the United States, I have now to state that I am informed by the Secretary of the Navy, to whom I referred your despatch, for perusal, that from the reports made of the utility of the steam launches used in the British and French navies, in saving labor to the crew in towing, and for other purposes, it was thought advisable to order a few of them. The number so ordered was limited to twelve, in which no armament has been or will be placed.”
Mr. Seward, Sec. of State, to Mr. Adams, min. to England, No. 1305,
March 17, 186.), MS. Inst. Great Britain, XX. 124.
A vessel called the Meteor was built in the United States in 1865, during the war between Chile and Spain, and sold to the Chilean Government, without armament, and then, it was alleged, commissioned, when in the United States, as a Chilean privateer. She was libeled in New York and seized January 23, 1866. On the hearing before Judge Betts it was maintained by the claimant to “be no offence under the act of 1818] to issue a commission within the United States for a vessel fitted and equipped to cruise or commit hostilities, and intended to cruise and commit hostilities, so long as such vessel was not armed at the time, and was not intended to be armed within the United States, although it could be shown that a clear intent existed, on the part of the person issuing or delivering the commission, that the vessel should receive her armament the moment she should be beyond the jurisdiction of the United States." It was said, however, by Judge Betts, that “ the court can not give any such construction to the statute. Such a construction was repudiated by the Supreme Court.
The Meteor, although not completely fitted out for military operations, was a vessel of war, and not a vessel of commerce. She had in no manner been altered from a vessel of war so as to fit her to be only a merchantman and so as to unfit her to be a vessel of war. It needed only that she should reach a point beyond the jurisdiction of the United States, and there have her armament and ammunition put on board of her, to become an armed cruiser of the Chilean Government against the Government of Spain.
To say that the neutrality laws of the United States have never prohibited the sale of a vessel of war as an article of commerce is merely to say that they have not prohibited the fitting out and arming, or the attempting to fit out and arm, or the furnishing or fitting out or arming, of a vessel within the limits of the United States, provided the unlawful and prohibited intent did not exist." The court relied as authority on Dana's Wheaton, 562, 563, note 215, where it is said that “ an American merchant may build and
, fully arm a vessel, and supply her with stores, and offer her for sale in our own market. If he does any acts, as an agent or servant of a belligerent, or in pursuance of an arrangement or understanding with a belligerent, that she shall be employed in hostilities when sold, he is guilty. He may, without violating our law, send out such a vessel, so equipped, under the flag and papers of his own country, with no more force of crew than is suitable for navigation, with no right to resist search or seizure, and to take the chances of capture as contraband merchandise, of blockade, and of a market in a belligerent port. In such case, the extent and character of the equipments is as immaterial as in the other class of cases. The intent is all. The act is open to great suspicions and abuse, and the line may often be scarcely traceable; yet the principle is clear enough. Is the intent one to prepare an article of contraband merchandise, to be sent to the market of a belligerent, subject to the chances of capture and of the market? Or, on the other hand, is it to fit out a vessel which shall leave our port to cruise, immediately or ultimately, against the commerce of a friendly nation! The latter we are bound to prevent. The former the belligerent must prevent." Judge Betts then proceeded to say: “ The evidence in the present case leaves no rational doubt that what was done here in respect to the Meteor, was done with the intent that she should be employed in hostile operations in favor of Chile against Spain, and that what was done by her owners towards despatching her from the United States was done in pursuance of an arrangement with the authorized agents of Chile for her sale to that Government and for her employment in hostilities against Spain, and that the case is not one of a bona fide commercial dealing in contraband of war. With these views, there must be a decree condemning, and forfeiting the property under seizure, in accordance with the prayer of the libel.”
Report of the Case of the Steamship Meteor by F. V. Balch (Little,
Brown & Co. 1869), I. 229. See, also, Halleck, Int. Law (Baker's
ed.), IJ. 199. " It has been by many supposed that the decision in this Meteor case will
be of great weight and importance as a precedent in the question of the labama and other Confederate vessels, now pending between this country and Great Britain ; and the suspicion has been intimated by some that the law was a little warped by the learned judge, with the charitable intent of aiding Mr. Seward in the controversy. To justify either of these ideas, it is of course primarily necessary that the cases should be at least substantially parallel. That they are very far from being so may be briefly shown. The Meteor was built as a purely commercial enterprise, to be sent to a foreign port, there to take her chance of finding a market, subject to the risk of capture on the way, to be followed by confiscation as contraband of war; and to the further risk, should she reach her destination in safety, of finding no market in case the war should be drawing to a close, or terms could not be agreed on; liable also to be sold to any other bidder who would pay a better price. She differed nowise from any other contraband merchandise except in the wholly insignificant fact that, instead of being of such a nature as to require to be carried, she was able to move herself. She was simply a mercantile speculation in contraband merchandise, which is of all men and nations confessedly and avowedly legitimate. The Alabama presents no one of these characteristics. · . The question then being, as Mr. Dana says, of intent, the vital difference is readily distinguishable. The English builders had assured their trade before they entered upon the undertaking; the American merchants only had in view a quite probable purchaser. The former were not free to dispose of their ship to any person who might offer her price, for she was bespoken; the latter would have been very glad to have received and closed with a fair offer from any source. In short, the action of the former betrays clearly the intent, the element of illegality, but how the action of the latter can have been regarded in the same light, we must confess ourselves unable to see. Where, then, is the similarity? Or why should it have been conceived necessary to sacrifice the Meteor, to overrule old and good law, to create a new necessity requiring to be met by new statutes of untried efficiency, simply for the purpose of creating a precedent which is after all no precedent?” (103 North American Review (October, 1866), 488.)