DUTIES OF NEUTRALITY. 
THE UNITED STATES
V8.
THE STEAMSHIP'METEOR,'
&c.,     &c.,     &c.
It'Abmitaltt.
CLOSING ARGUMENT IN BEHALF OF THE UNITED STATES,
BY
SIDNEY WEBSTER.
REPORTED BY UNDERHILL & WARBURTON, LAW STENOGRAPHERS.
NEW YORK:
JOHN F. TROW & CO., PRINTERS,
50 GREENE STREET.:      i.
1866.








DUTIES OF NEUTRALITY.
THE UNITED STATES
V8.
THE STEAMSHIP'METEOR,'
&c.,      &c.,      &c.
~n' 25Imir alH.
CLOSING ARGUMENT IN BEHALF OF THE UNITED STATES,
BY
SIDNEY -WEBSTER.
REPORTED BY UNDERHILL & WVARBURTON, LAW STENOGRAPHERS.
NEW YORK:
JOHN F. TROW & CO., PRINTERS,
50 GREENE STREET.
1866.








AR GUMENT.
IF IT PLEASE THE COURT:
It has been my endeavor, by a careful review  of the
learned and elaborate argument of the counsel for the claimants (Mr. Evarts), to eliminate therefrom the propositions
of law upon which he seemed to desire to rest this cause.
It is not needed that I re-announce his argument; it is
enough that I restate his positions, in, as near as may be,
the terms in which they were originally propounded.
His earliest general assertion of doctrine, on the first day Doctrines
of his argument, was in these words:                           fol by the
claimants.l
"Commerce is not to be trammelled in warlike materials or warlike
ships, because there happens to be a war, for war is the only promoter
of traffic in warlike materials and warlike ships."
On the second day, the legal thought announced on the
first day, was developed in the following form:
" If it does not appear affirmatively, on the part of the government,
that the vessel is to sail from this port as an enlisted hostile ship of one
belligerent, then there is no forfeiture, although it may be made to appear by indisputable proof that she has been built, fitted, armed, and
equipped as a ship of war, complete and ready for action."
Again:
"The diplomatic discussions from the foundation of the government, the orders of the executive, everything shows that all our law
undertakes, all that it will permit the supposed duty of neutrality to
accomplish, is. that there shall not be an enlisting in the cause of the




4
belligerent qcithin our ports, to the extent of having the vessel armed and
equipped, or armed and equipped in a warlike manner with that intent."
Further on in the discussion, the distinguished counsel,
rising to the height of his great argument, thus declares the
measure of belligerent right, and the rule of neutral duty:
" Now, if your Honor please, to bring this matter down to some
distinct tests, suppose that the Meteor, while she lay at the wharf; without any coals or provisions on board of her, had been sold to the Chilian government, deliverable outside of this port, or deliverable in Chile,
and that was proved by a written open contract, brought into court,
will the prosecuting officer claim that that brings her within the statute
against fitting out and arming with intent that she should be used by a
belligerent? Where would be the single act attempted or initiated in
respect to this vessel with the guilty intent? Manifestly nothing.
What reason is there that a vessel, acquired by a belligerent, and thus
not guilty up to the time of acquisition, should be prohibited from receiving, not warlike equipments, but receiving coals and provisions suitable? There really would be no violation of our neutrality act, it seems
to me, if Chile had acquired by purchase a transfer of the title of this
ship, and if, having acquired that title, she openly undertook to put
coals and provisions on board, with a commercial crew, and took the
vessel out to Chile; no violation of our neutrality, act whatever.  I
hold it to be manifest that a ship, having, if you please, adaptability to
be made into a war ship, and adaptability for use in commerce, may be
acquired by any foreign government in our ports, by purchase, and if,
after the acquisition, the only fitting-out and preparation for sea and
egress from port, prepared or attempted, is with a commercial and
peaceful crew, with coal for the use of her engines, and provisions for
the support of a commercial and peaceful crew, there is not any infraction of our neutrality laws whatever. Nor is there anything technical
or formal in this decision. It is essential. If it is competent for a foreign nation to buy a ship, it is competent for a foreign nation to take
her out, omitting any warlike change or equipment."
Such  are the propositions  of law  advanced  by the
claimants, and your Honor must decide whether they are
the doctrines of international law, and municipal jurisprudence, which govern in the judicial tribunals of the United
States.
stitution by    It will not be seriously denied in this court, that we, in
U ng inthe the United States, are subordinated to the general law of naStates into
the family tions, in so far as that law applies to our intercourse with,
of nations,
placed them and relation to, the rest of the world.  The Constitution deunder the
ws of na- clares this, by the mere act of bringing us into the circle of
independent civilized States.  It is the condition  of our
national existence to be subject to that code. No nation can




be so great as to be exempt from the power, or so little as
not to feel the care, of that ample and boundless jurisprudence " whose seat is the bosom of God, and whose voice the
harmony of the world."  We cannot escape it if we would,
for to escape it we must fly from ourselves, and spurn our
own national nature.
It is a famliliar doctrine of this grand jurisprudence, that
a neutral must so retain his attitude of impartiality, in the
face of other warring nations, as not to incline to, or aid,
either belligerent.' Recognized international obligations not
only prohibit the enlisting of soldiers, or sailors, in the territory of a neutral, for service in the interest of either belligerent, but they also forbid the beginning, setting on foot, providing, or preparing, in the dominions of a neut:al, the means
for any naval enterprise whatsoever.  All this is clear. The
fifth and seventh volumes of Wheaton's Supreme Court Reports, are replete with decisions announcing this primary
principle of neutrality. The act of 1818, in its sixth section, explicitly declares it.  No incipient step in war is allowed, by the law of nations, to begin on neutral ground.
(Twee Gebroeders, 3 Robinson's Rep., 162.)  No act of hostility can have its commencement there. A neutral cannot
permit one belligerent to have a station in, and lmale a vantage-ground of his country, to procure material with which
to injure the other belligerent. Such is public law, as accepted by jurists everywhere.
Now, if the Court please, the neutrality act of 1818 consecrates these tenets and determinations of international jurisprudence.  It aims to repress and prevent all naval enterprises, set on foot in the United States as a point of departure.
Its fifth section punishes, with fine and imprisonment, any
person who, in this country, increases or augments the force
of any armed vessel of either belligerent, whether by adding
to the number of its equipments, or " by the addition thereto of any equipment solely applicable to war."  So that, if a
cruiser of Chile, for example, be lying in the port of New




York to-day, it is very clear that our merchants cannot supply her with shot, shells, guns, or ammunition, so long as
war exists between that nation and Spain, and the United
States are at peace with both.  Its sixth section also punishes, by fine and imprisonment, any person who shall provide the wneans for any military enterprise against nations
with whom we are at peace. Its tenth section requires that
owners of armed ships shall give bonds in double the value
of the ship, that she shall not cruise, or commit hostilities,
against nations with whom we are at peace. Its eleventh section authorizes collectors to detain vessels, " manifestly built
for warlike purposes, and about to depart, of which the cargo shall consist of arms and munitions of war."
What, I pray to know, are those restrictions of positive
law, if not trammels upon commerce in " warlike materials
or warlike ships. "  How can it be said, with such legislation staring us in the face, that war between two States, with
whom we are on terms of amity, does not impose on us any
limitation of commerce? I ask my learned opponent to tell
me by what rule of logic, or legal interpretation, he construes
a statute, enacted for the purpose of protecting neutral rights,
and enforcing neutral duties, in such a manner as to make
the sale of a cannon, a shell, or a cutlass, to a belligerent's
vessel of war, an offence to be visited by fine and imprisonmnent, but the sale to, and fitting out for that same belligerent
for his use, of a powerful cruiser like the Meteor, an innocent transaction, not reached or covered by the statute!
The claimants, it is plain to see, have submitted to your
lionor, as basis for release of the Meteor, a proposition of
law so broad, that it is contradicted by a positive statute,
and yet a statement less ample would not cover the nakedness of the Meteor.
Nobody denies that warlike materials, among which coals
are now included, and warlike ships, are contrabanzd of war.
Everybody admits that there is punishment, of one kind or
another, which may be inflicted upon a neutral who sells




7
and transports contraband goods to a belligerent.  All agree
that one penalty of carrying contraband to a belligerent, is
liability to capture of the articles by the other belligerent,
and loss, it may be, under certain circumstances, of the
vehicle in which conveyed.  So much  of restraint on
commerce of neutral nations, caused by war, is indisputable.
But it is claimed that a neutral may, with impunity, sell
on his own soil, to the agents of a belligerent, contraband
articles, provided the property actually changes ownership
on the neutral ground, and the neutral does not undertake
to transport by sea. If the goods, in that condition, are captured, the neutral suffers no loss, because they are the property of the enemy. The belligerent injured by the sale
has no remedy, no matter what his rights, against the
neutral, and his rights, if he have any, he can only enforce
by war. But a war never has been undertaken, and probably never will be, on account of a sale of such small articles
made and completed on neutral ground. The name of passive contrabamd has been given to this kind of traffic; but I
never heard that any publicist or jurist, of established reputation, claimed that it included a vessel of war, which is very
far, when provided with good engines, from being a passive
thing. The line of demarkation, so far as principle is concerned, between this passive contrabacnd, which is permitted,
and traffic in warlike ships, which is prohibited by our neutrality act, may in some instances be minute and not easily
seen by the superficial observer, but yet it exists, and is apparent to him who, like your Honor, has a practised perception of legal truth. It is declared by our neutrality act of
1818. It is the distinction between inertness and action;
between a mass of mere matter and a moving enterprise.
Thus it is that it by no means follows, because a neutral
has a right, on his own soil, to sell to a belligerent arms
and ammunition, that, therefore, he has an equal right to
provide him, under all circumstances, with an armed, or an




8
unarmed vessel of war. The two cases are not similar, nor
founded on equal reason.
it is apparent, on the face, that the mere selling here, in
New York, of a dozen of carbines, or a thousand percussion
caps to Chile, leaving to the " confidential agent " the risk of
transporting them  to that country, need not be acts dangerous to our neutrality, for the reason, among others, that the
contraband articles may, in the absence of any vessel from
here, be but component parts of a naval enterprise, fitted
out in the belligelrent's own territory.  Parrott-guns, carbines, and percussion caps cannot alone make up a naval expedition, for they cannot cruise to commit hostilities; but
the latter can and do transport the former, and so, without
entering into any foreign port, or any port of the belligerent, constitute a terrible enterprise of destruction, as the
Alexandra, Alabama, Georgia, and Florida taught us by the
lurid flames of peaceful traders and toiling fishermen, burned
into a watery grave.  More than that, it is not needed now
that a cruiser have guns on board to constitute her a warlike
instrument of naval offence.  To "' run down a ship," to
" cut a ship in twain," were the common phrases of the late
war. Powerful engines, and stout bows, are dangerous enemlies to peaceful merchantmen.
c Your Honor must have observed the persistence with
The court
must look to which the counsel for the claimants has, froln the beginning
the  -eigning
legisla tiont to the end of his argument, in the great part of the citations
and  jurispo udence of which be has submitted to the court, clung to what was said
to-day, and
not to the.ats ot the and done in this relation during the early period of our
Execu t i v e
priior to the Republic.  Far be it from us, here or elsewhere, to underyear 1794. value the opinions of those great men of the Revolutionary
epoch who, out of decaying nationalities, the keen jealousies
of States, and the formidable animosity of the parent country, laid the foundation of this federated fabric of republican
government.  Hie must be bold, indeed, who ventures to
arraign, or qualify in any sense, the teachings of either of
the great triumvirate of statesmen-Washin gton, Hamilton,




9
and Jefferson —who not only allured others to national independence, but in their own persons led the way. But it is
no impeachment of their profound statesmanship, and farseeing devotion to all that could concern the name and fame
of the young government, to suggest that there were peculiar circumstances at that time, which tended to mould and
form the opinions which the Government expressed in respect to neutral duties. The attitude of the administration of
Washington was as bold as it was just. It was, however,
before action by Congress in 1794, constrained to consult
somewhat the temper of the people, and to harmonize conflicting popular emotions.
The, citations made on the other side, from   "Sparks'
Life of Washington," the " Works of Hamilton," "' Jefferson's Complete Works," and the " American State Papers,"
all refer to a series of official acts prior to the neutral legislation of 1794, which was a new and significant point of departure for the United States in respect to neutral duties.
The circular of Mr. Alexander Hiamilton to collectors of custonms was issued in 1793, and contained, no doubt, a correct
statement of the u.tlost limit to which, at that time, President Washington felt bound to go. But since that time
much has become changed —changed by legislation and judicial construction; changed by naval architecture; changed
in those physical facts by which one vessel secures the subjection and surrender of another vessel at sea.
My learned friend, who has conducted this case with such
conspicuous ability on the part of the claimants, does not
ordinarily need outside suggestions to aid in the conduct of
causes which he happens to represent, in this or any other
judicial tribunal, but yet no one can fail to see that a chief
part of the propositions of law, and the arguments thereon,
which he has addressed to your Honor, are not unlike those
which constituted the staple of the enemies of the United
States, in discussing the question of belligerent rights, during
our recent rebellion.  Then and there, as now and here, the




10
claimants of inculpated vessels, no matter whether the Messrs.
Laird, of Liverpool, or the Messrs. Forbes, of Boston, clung
with unreasoning pertinacity to precedents drawn from the
first ten years of our history.- Nothing could shake off
their grip. If any official in the LUnited States, before the
year 1794, did an act, or said a thing, demanded by the
exigencies of that early day, it has been flauntingly quoted
as a just exposition of existing opinion in the United States.
Subsequent legislation, and the reigning jurisprudence of today, all go for nothing with them. In the time of Washington, Jefferson, and Madison, a ship could not well be a vessel of war unless she had gulns actually protruding from her
port-holes, and ready for instant action. Then' steam had
not become the great motive power in naval combats; then
iron vessels were unknown; then those terrible monsters of
the deep, the Monitors, were things never dreamed of. But
now, under the influence of science, and the march of invention, captures are made at sea, peaceful merchantmen are
terrified into a surrender, quite as nmuch by a powerful crew,
a projecting prow, and engines like those constructed for the
Meteor, as, in the olden time, they were by the guns which
ranged around a fully-equipped man-of-war. In the case of
Great Britain herself, in the Inatter of the iron-clads, to
which I alluded in my opening statement, and assumed to
be built for the Confederates by the MAessrs. Laird, it will
not be pretended that, at the time those ships were seized by
the English Government, they were armed, fully equipped,
and enlisted in the Confederate service. On the contrary,
they had not a gun, a shell, or a cannona, on board.  It
was when the fortunes of the rebellion beegan to wane, and
England began to see her true interest to be in relations of
amity with the United States, and Lord Russell was brought
to his senses by the dispatch of Mr. Seward to Mr. Adcams,
under date of July 11, 1863, in which the Secretary of State
informs the Queen's Government that if the doctrine of the
Alexandra case is to be ilaintained by Great Britain, the




United States will reflect whether the maintenance of their
own existence does not require them to take the remedy in
their own hands, and pursue the Anglo-rebel pirates, and
capture them, if need be, in the very harbors of Great Britain.
It was, I repeat, such acts and such thoughts which, among
others, seem to have brought the Queen's minister to reflection, in respect to what, in modern times, constituted warlike
fitting, and not only secured revision of the old doctrine in
that regard, but eventually led the English Government to
put its interdict upon the iron-clads which were being constructed at Birkenhead. All this is apparent from the documents given in the diplomatic correspondence of the Department of State for the year 1864.                               Change of
Soon after the reception in England of the dispatch of oplPnifon ll
IMr. Seward to Mr. Adams, of the date of July 11, 1863, to waafirM;rly
863  assert-which I have before referred, there can easily be discerned a edtheAmerican doctrine
change in public opinion indicated by the daily press, and in respect to
neutral duby journals especially devoted to legal discussion.  With ties.
permission of the Court, I desire, in confirmation of what I
suggest, to call attention to an article in the ~Loncdon Law
Times for September 19, 1863, upon this subject.  This
journal had previously been most decided in vindication of
the theory of neutral obligations contended for by thle Confederate agents.  But at the date to which I refer, there is
an article most significant in its tone of thought and expression. I will read but a brief extract therefrom:
If a nation permit anything to he organized and constructed within
its boundaries, which is plainly designed for the use of one belligerent,
it is guilty of a very clear breach of neutrality against the other. By a
loose, and, as we believe, highly improper reading of the law, it has been
taken for granted that it is not against the principles of international
law for a neutral power to permit its subjects to sell munitions of war
to a belligerent power. It is held that a contrary principle would interfere too much with the shipbuilders of the Mersey and the Clyde,
and the gunmakers of Birmingham, to be tolerated. But it appears to
us that there are some things which, in the estimation of rightly-thinking men, may be of even higher importance than the prosperity of the
Birkenhead shipowners or the Birmingham gunmakers, and, among
them we may be permitted to reckon a reverence for law and the preservation of the national honor. It mav be that, if we were to put the




spirit of the law into force-that spirit which arms the proclamation of
the Queen when she prohibits the sale of all munitions of war-by preventing ships, evidently built for warlike purposes, and cargoes of lethal
weapons, except upon proof that they were not to be used in a quarrel
as to which we are neutral-it may be that in such a case a few men
would have to get rich more slowly; but, at any rate, the nation woqlcd
be saved from the imputation of the guilt of blood-a guilt which is
equally abhorrent whether it sullies the reputation of a man or of a people.
Tple pro- o The central proposition of law, therefore, upon whichb the
position of
law mainly learned counsel for the claimants rests his defence of the Merelied upon
bytheclaim- teor, is the one so much exploited in the case of the Alexandra.  It was relied upon by the Parliament and public press
of England, to uphold the conduct of the Queen's Governmlent, in the matter of the Alabarra, and therefore was
support sought in the case of the &Satnssirnca Trinidad.
Having been used elsewhere, to justify B3ritish  subjects in
supplying Confederate agents with gunboats, and all tile
naval thunders which the private shipyards and arsenals of
that country could produce, that overworked case is now
reproduced for the protection of the Meteor.  With how
little reason it can be thus used, will now be considered.
On the trial of that case, in the court below, it was
Exposition
of the case proved that a vessel built and used as a privateer, in the war
of The Sanssm~a Tri.- of 1812, was, after the peace, sold by her owners, and by the
purchasers sent as a commercial adventure, with her arniament and a cargo of warlike materials, to Brazil (tlien at war
with Spain), for sale to the Government of Brazil, if it saw
fit to purchase her.  There was no previous contract or understanding as to who the purchaser was to be, nor any limitation in that respect.  The vessel was bought there by private parties, commissioned as a Brazilian war vessel, under
the name of Independencia del Sud, and sailed on a cruise
along the Spanish coast. She subsequently put into Baltimore, and there added thirty men to her crew, procured another small vessel (Altravida), as a tender, and sailed away
again. Having made capture of certain articles, she brought
them into Norfolk, Virginia, and placed them  in the customs
warehouse for safekeeping, where they were libelled by the




13
Spanish consul in behalf of the owners.  The court decreed
restitution of the articles to thle owners, on the ground that
the augmentation of the force of the vessel in Baltimore was
" a violation of the law of nations, as well as of our own
municipal law," which justified and required a restitution of
the articles to the parties injured by such conduct.  Such is
the decision in this case. Its gist and legal point are, that
the prizes of cruisers illegally equipped in our' ports, when
brought within our jurisdiction, are liable to seizure and
restitution to the original owners.
Another point was raised in the case, to the effect that
the captures were void, because the capturing vessel was
originally equipped, armed, and manned as a vessel of war
in ourb ports.  It was, however, summarily overruled by Mr.
Justice Story, who said:
" It is apparent, though equipped as a vessel of war, she was sent to
Buenos Ayres on a commercial adventure, contraband indeed, but in no
shape violating our laws or our national neutrality. If captured by a
Spanish ship of war during the voyage, she would have been justly condemnable as a good prize for being engaged in a traffic prohibited by
the law of nations. But there is nothing in our law, or in the law of
nations, that forbids our citizens from sending armed vessels, as well as
munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the
persons engaged in it to the penalty of confiscation."
We have seen that the facts proved in this case are that
the capturing vessel was first sold to private individuals in
Brazil, and by them resold to the government, and that she
did not leave Baltimore under any contract, express or implied, with the agents of Brazil. When she originally sailed
from Baltimore, there was no fixed intention to employ her
to cruise, or commit hostilities in the interest of Brazil.
Thus it was purely a commercial hazard and adventure.
There was no " fitting out," in our jurisdiction, with guilty
knowledge or intent. But even to this extent, the quotation
from Judge Story is not authority, because it was not necessary to the decision of the case, and is therefore obiter dicta.
In fact, the Supreme Court so treated it in the case of




14
ofThe,e ca the Gra~n Para, where the capturing vessel was built in the
Pa ra.    port of Baltimore in 1817, and constructed for purposes
of war.  After being launched, she was, February 16, 1818,
purchased by the claimant, then a citizen of the United
States.  The vessel then cleared for Teneriffe, having in her
hold twelve eighteen-pound grenades, with their carriages,
a number of small arms, and a quantity of ammunition,
entered outward as cargo. No guns were mounted.  The
vessel proceeded directly for Buenos Ayres, and discharged
her crew there.  Subsequently she obtained a commission
from the government of the Oriental Republic to cruise
against Spain, and sailed in June, 1818. under the command of the claimant. In September, 1818, she returned
to Baltimore with the money in question.  Chief-Justice
Miiarshall, in giving the opinion of the Court, rehearsed
the before-mentioned facts, declared the only question to be
whether the Irresistible was originally fitted out in Baltimore in violation of the neutrality act of 1818, and added:
" There is nothing resembling a commercial adventure in any part of
the transaction. The vessel was constructed for war, and not for commerce. There was no cargo on board but what was adapted for purposes of war.   *   *   *   *   *   The third section makes it
penal for any person, within any of the waters of the United States, to
be' knowingly concerned in the furnishing, fitting out, or arming of any
ship or vessel, with intent that such ship or vessel shall be employed in
the service of any foreign prince or State, to cruise,' &c.
" It is too clear for controversy that the Irresistible comes within this
section of the law also."
Would the venerable Chief-Justice, who gave the opinion
in the Gran Para, have hesitated, upon the proofs before
your Honor, to condemn a vessel like the Meteor, constructed in all respects for war purposes, and attempting to depart
on an understanding with a belligerent government, that
she was eventually to cruise or commit hostilities in the
service of that belligerent? Could any jugglery, of a pretended commercial transaction, dupe or mislead his instinctive perception of truth, and relentless logic?
The dictum of Judge Story in the Santissima Trinidad,




15
if of as much authority as the learned counsel for the claimant contends, should and would have saved the Irresistible.
But she was condemned! If it was powerless to protect
that vessel, in a court of which Judge Story was a member,
it certainly cannot now rescue the Meteor.
But we are not left to rely upon the Grmn Para alone; The case
for the case of United States vs. Quincy, decided in 1832, of Quincy.
and to which I shall have occasion to refer again in another
part of my argument, so linits and modifies the general language used by Mr. Justice Story in the Santissimna Trinidad, that it fails to be a support for the claimants of the
Meteor.  That most accurate judge, Mr. Justice Thompson,
in Quincy's case, declared that there was something " in our
law that forbids our citizens from sending armed vessels to
foreign ports for sale," provided there existed a guilty
knowledge or intention. He said that the mnaterial point to
be determined in such cases was whether the adventure was
commercial or warlike, which, in turn, depended on the intention with which the negotiations, or preparation for the
voyage were made. It is the guilty knowledge, or intent
that the vessel may be used to augment the aggressive force
of one belligerent against another, which taints her, and entails confiscation.
But the facts proved in respect to the Meteor go further
than this, for we establish a conspiracy in New York to fit
her out for the service of Chile. The territory of the United
States has thus been used by these conspirators as a startingpoint, or base of operations, for a hostile naval enterprise.
We bring the Meteor within the doctrine of neutral duties
for which Mr. Adams so resolutely contended with Lord
Russell, and which doctrine, public and official opinion in this
country everywhere approved.
Your Honor is so familiar with what has transpired
abroad in respect to the Anglo-Confederate pirates, that it
is not necessary to say here that the Alabama, when she
escaped from  Liverpool, had no armament on board, and




16
that, in power of destruction, she was, in no sense, the equal
of the MIeteor, which was built expressly to cruise after the
Alabama, and what Mr. Forbes, in his letter, describes as
the other "British pirates."  The guns of the Alabama were
taken on board from another vessel, at the Azores, in Portuguese waters. She was sold to Confederate agents on a pretended commercial basis.  And shall it be that we, in the
United States, who sustained Mr. Adams in the matter of
the Alabama, are now to put ourselves in the condition of
demanding from other nations that which we are unwilling
to give in return?  Can it be that events have hurried
lby with such rapidity, dluring the rebellion, that we have
now forgotten to what extent public opinion was here carried against England, for her conduct in the affair of the
Alabama?
The action of commercial associations, no matter how ret'h l  l record
otIftheChlrn- spectable, affords, I am well aware, no rule for the guidance
her of Cointl-e`Of' tehe of this court; but yet, it may be useful, in this connection,
State of New
York, on the          t                r            T 
rec.]ui-ement to point back to the mercantile record of New York.  With
of    honest
neutrality. your I-Ionor's permission, then, I call attention to proceedings
which have been had, at various times, in the Chamber of
Commerce of the State of New York, in respect to the rights
and duties of neutrals.  These proceedings will be the more
edifying by reason of the fact that some of the more prominent of the members of the Chamber happen now to be
pecuniarily interested in the Meteor.
In 1855, on complaint of the British Consul at this port,
a bark, loading for China, was detained by orders from
Washington for examination.  The Chamber, thinking this
act an offence against their body, appointed a committee to
investigate the circumstances of the case, and make a report
thereon. That report contains an exposition of what the
Chamber deemed, at that time, to be the duties of neutrality. It says:
" Our laws forbid the being concerned in fitting out any vessel to
commit hostilities against any nation at peace with the United States.




17
These laws are the well-known expressions of public opinion, and the
common consent of the country. * * The Chamber of Commerce of
New York hold these enactments binding equally in law, honor, and
conscience," &c.
The general tone of these views is certainly unexceptionable.  The declaration that our laws forbid the being concerned in fitting out any vessel to conmmit hostilities against
any nation at peace with the United States, embodies the
very doctrine for which I have now the honor to contend.
It will be observed that the Chamber is explicit that it is
forbidden to fit out'" any vessel," no mattel whether armed
or unarmed, wood or iron, transport or gunboat. All I ask
is that this rule be applied to the ease of the Meteor.
This report was followed by a series of resolutions, one
of which denounces those, who violate the neutrality laws
of the United States, "as disturbers of the peace of the wtorld
to be held in universal abhorqrence."'
Again: a meeting of the Chamber of Colnmerce Mwas
held, October 21, 1862, in respect to the burning of the ship
Brilliant, by the Alabama.  On that occasion, a speech was
made by Mr. A. A. Low, the Vice-President of the Chanmber, and one of the owners of the Meteor. He was not sparing in criticism upon English ship-owners, and ship-masters,
who sold the Alabama to Confederate agents, nor did he omnit
to pay his respects to the authorities of the Queen's Government who permitted her to escape.  And he concluded by
submitting a series of resolutions, three of whllich I venture
to read:
Resolved, That this Chamber has not failed to notice a rapid change
in British sentiment, transforming a friendly nation into a self-styled
"neutral " power, the nature of whose neutrality is shown in jpermitting
ships to go forth with men, and in permitting an armament to follow
them for the detestable work of plundering and destroying American
ships, thus encouraging upon the high seas an offence against neutral
rights, on the plea'of which, in the case of the Trent, the British government threatened to plunge this country into war.
Resolved, further, That the outrage of consigning to destruction, by
fire, without adjudication, British and American property together, is an
aggravation of the offence against the rights of neutrals, and ought to
be denounced as a crimze by the civilized nations of the world.
Resolved, That this Chamber heard, with amazement, that other yes2




18
sels are fitting out in the ports of Great Britain. to continue the work
of destruction begun by the Alabama; an enormity that cannot be committed on the high seas without jeopardizing the commerce and peace
of nations.
It will be noticed by the court that these resolutions condeinn the sale and exit of an unarmed vessel; of a vessel by
n1o means equal, when she left the port of Liverpool, to the
destructive power of the Meteor.
Again, on February 21, 1863, the Chamber of Commerce
held another meeting on the subject of the " continued piracies of vessels fitted out in Great Britain upon American
commerce."  At this time Mr. A. A. Low, one of the owners of the Meteor, submitted a report, instead of a speech, in
which he contrasted the course of the Aunerican Government, in past years, with that of the British Government, in
permitting an untarimed vessel like the Alabama to escape.
This report concluded with the following words:
" Your committee respectfully suggest that this Chamber has a right
and has reason to complain and to reiterate its complaint of an interpretation of the neutrality law, which is at variance with both the theory and practice of the American government, as already shown-an
explanation which places at'the command of the rebels the forges, arsenals, ship yards, seamen and ships; in a word, all the various instrumentalities of the greatest naval power of the world; and the Chamber
of Commerce mlay well join to its complaint the bitter lament that a
nation, claiming to be foremost in the advancement of civilization and
the special guardian and exponent of commercial honor, should take an
attitude so repugnant to the spirit of the age! "
Now, if the court please, the precise point of these two
meetings of the Chamber of Commerce of New  York is,
first, arraignment and denunciation of English ship-builders and ship-owners for selling the Alexandra, or the Alabama, to the agents of the rebellion; secondly, vituperation
of England for allowing the  Confederates  to  use  her
"' forges and arsenals," not less than ship-yards; and next, a
censure of the Queen's Government for permitting those two
vessels to go to sea, and for not condemning them, in courts
of law,  as forfeited to the Government of Great Britain for
violation of the Foreign Enlistiment Act of that country.
The Chamber of Conmmerce knew, or it ought to have




19
known, that one great difficulty in the case of the Alexandra was to prove that she was a war vessel, which difficulty is removed in the case at bar, by the letter of Mr.
Forbes, one of the owners of the Meteor.  The Chamber
also knew, or ought to have known, that when the Alexandra, or the Alabama, escaped from English jurisdiction, they
werelenot armed, any more than the Meteor was armed when
she attempted to clear friom the port of New York, on the
day she was arrested by a mandate from this Court.  If the
speeches and reports of Mr. Low, and the resolutions of the
Chamber, were just and deserved —— if they were not mere
aimless invective-in respect to the English Government
and its people, then it is clear that the Chanmber ought at
once to arraign, in like language, and with like severity, the
owners of the Meteor, upon the facts which have been proved
in this case.  And if the lamented District-Attorney of the
United States, Mr. Dickinson, had failed to act with the
promptness and vigor which he displayed in respect to the
Meteor, when the facts of the case were bronlght to his attention by the Spanish authorities, he would have been liable
to censure as severe as that which the Clhamber of Colmmerce visited upon the law officers of Great Britain.
But this is not all of valuable, popular or official, opinion of Seiiato,
on this subject.  I hold in my hand a speech on foreign chai,',I ofl.
the Commitaffairs, made September 10, 1863, by Mr. Suminer, Senator tee ofL Foreirn Affiirs
of the United States from the Commonwealth of Massacllh- intheSeiate
of theUnitedl
setts, and Chairman of the Committee on Foreign Affairs. States, lxI call your Honor's attention to an extract, not only as giv-.pPc,  i*
ing expression to the opinion of a very careful student of ilternational law, the compiler of' a most important series of
the judicial decisions of Mr. Justice Story, but also as indication of the popular and professional current on this topic
in the year 1863.
But even the Royal Proclamation gives no sanction to the preparation in England of a naval expedition against the commerce of the Unitecd States. It leaves the Parliamentary Statute, as well as the general
Law of Nations, in full efficacy to restrain and punish such an offence.




20
And yet in the face of this obvious prohibition, standing forth in the
text of the law, and founded in reason " before human statute purged
the common weal," also exemplified by the National Government, which,
from the time of Washington, has always guarded its ports against such
outrcage, powerful ships have been launched, equipped, fitted out and
manned in England, with arms supplied at sea from another English
vessel, and then, assuming that by this insulting hocus ocus all English
liability was avoided, they have proceeded at once to rob and destroy
the commerce of the United States. England has been their naval base
from which were derived the original forces and supplies which enable
them to sail the sea. Several such ships are now depredating on the
ocean, like Captain Kidd, under pretended commissions-each in itself
a naval expedition. As England is not at war with the United States, these
ships can be nothing else than pirates; and their conduct is that of
pirates.    *    *    *              * *        *  *  *         **
It is bad enough that all this should proceed from England. It is
hard to bear. Why is it not stopped at once? One cruiser might perhaps elude a watchful Government. But it is difficult to see how this
can occur once-twice-three times; and the cry is still they sail. Two
powerful rams are now announced, like stars at a theatre. Will they
too be allowed to perform?    *    *    *    *    *    *    *   *
Municipal Law is violated-while International Law, in its most
solemn obligation to do unto others as we would have them do unto us
-is treated as if it did not exist. Eminent British functionaries in
Court and Parliament, vindicate the naval expeditions, which have been
unleashed against a friendly Power. Taking advantage of an admitted
principle, that " munitions of war " may be supplied, the Lord Chief
Baron of the Exchequer tells us, that " ships of war" may be supplied
also. Lord Palmerston echoes the Lord Chief Baron. Each vouches
American authority. But they are mistaken. The steel which they
strive to " impell " cannot be feathered from our sides. Since the earliest stage of its existence the National Government has asserted a distinction between the two cases; and so has the Supreme Court, although there are words of Story which have been latterly quoted to the
contrary. But the authority of the Supreme Court is positive on both
the points into which the British apology is divided. The first of these
is that, even if a "' ship of war " cannot be furnished, the offence is not
complete until the armament is put aboard, so that where the ship,
though fitted out and equipped in a British port, awaits her armament
at sea, she is not liable to arrest. Such an apology is an insult to the
understanding and to common sense-as if it was not obvious that the
offence begins with the laying of the keel for the hostile ship, knowing
it to be such; and in this spirit the Supreme Court has decided that it
" was not necessary to find that a ship on leaving port was armed or in
a condition to commit hostilities;-for citizens are restrained from such
acts as are calculated to involve the country in a war." (U. S. vs. Quincy,
6 Peters, 445.) The second apology assumes, that, even if the armament
were aboard so that the " ship of war " was complete at all points, still
the expedition would be lawful, if the juggle of a sale were adroitly
employed. But on this point the Supreme Court, speaking by Chief
Justice Marshall, has left no doubt of its deliberate and most authoritative judgment. In the case before the Court, the armament was aboard,
but cleared as cargo; the men too were aboard but enlisted for a commercial voyage; the ship, though fitted out to cruise against a nation
with which we were at peace, was not commissioned as a privateer, and
did not attempt to act as such until she had reached the River La Plata,




where a commission was obtained and the crew re-enlisted; yet, in the face of
these extenuating circumstances, it was declared by the whole Court
that the neutrality of the United States had been violated, so that the
guilty ship could not be afterwards recognized as a legitimate cruiser.
All these disguises were to no purpose.  The Court penetrated them
every one, saying that, if such a ship could lawfully sail there would be
on our part " a fraudulent neutrality, disgraceful to our government, of
which no nation would be the dupe."  (The Gran Para, 7 Wheat., 471,
and also four other cases in same volume.)  But a "neutrality " worse
even than that condemned in advance by our Supreme Court, " of which
no nation would be the dupe," is now served out to us, which nothing
but the fatal war spirit that has entered into Great Britain can explain.
There was a time when the Foreign Secretary of England, truly eminent
as statesman and as orator, Mr. Canning, said in the House of Commons:' If war must come, let it come in the shape of satisfaction to
be demanded for injuries, of rights to be asserted, of interests to be
protected, of treaties to be fulfilled. But, in God's name, let it not come
on in the paltry, pettifogging way of fitting out ships in our harbors to
cruise for gain. At all events let the country disdain to be sneaked into a
wcar."  (Canning's Speeches, Vol. v. p. 51.)  These noble words were
uttered in reply to Lord John Russell- and his associates in 1823, on
their proposition to repeal the Foreign Enlistment Act and to overturn
the statute safeguards of British neutrality. But they speak now with
greater force than then.
Even if it be admittecl that " ships of war," like " munitions of war,"
may be sold to a belligerent, as is asserted by the British Prime Minister, echoing the Lord Chief Baron, it is obvious that it can be only with
the distinction, to which I have already alluded, that the sale is a comnwercial transaction, pure and simple, and not, in any respect, a hostile
expedition fitted out in England. The ship must be " exported " as an
article of comvmerce, and it must continue such until its arrival at the belligerent port, where alone can it be fitted out and commissioned as a
" ship of war," when its hostile character will commence. Any attempt
in England to impart to it a hostile character, or, in one word, to make
England its naval base, must be criminal; but this is precisely what has
been done. And here are the leonine foot-prints which point so badly.
But not content with misconstruing the decisions of our Supreme
Court, in order to make them a cover for naval expeditions to depredate
on our commerce, our whole history is forgotten or misrepresented.  It
is forgotten, that, as early as 1793, under the administration of Washington, before any Act of Congress on the subject, the National Government recognized its liability, under the Law of Nations, for ships fitted
out in its ports to depredate on British Commerce; that Washington,
in a Message to Congress, describes such ships as "' vessels commissioned
or equipped in a warlike form, within the limits of the United States,"
and also as " military expeditions or enterprises " (American State Papers, Vol. i. p. 22); and that Jefferson, in vindicating this policy of repression, said, in a letter to the French Minister, that " it was our wish
to preserve the morals of our citizens from being vitiated by courses of
lawless plunder and murder" (ibid, 148); that, on this occasion, the
National Government made the distinction between " munitions of war,"
which a neutral might supply in the way of commerce to a belligerent,
and " ships of war," which a neutral was not allowed to supply, or even
to augment with arms; that Mr. Hammond, the British plenipotentiary
at that time, by his letter of 8th May, 1793, after complaining of two
French privateers fitted out at Charleston, to cruise against British corn



22
merce, expressly declares that he considers them " breaches of that neutrality which the United States profess to observe, and direct contraventions of the Proclamation which the President has issued" (Wharton's State Trials, p. 49), and that very soon there were criminal proceedings, at British instigation, on account of these privateers, in which
it was affirmed by the Court, that such ships could not be fitted out in
a neutral port without a violation of international obligations; that,
promptly thereafterwards, on the application of the British Government,
a statute was enacted, in harmony with the Law of Nations, for the
better maintenance of our neutrality; that, in 1818, Congress enacted
another statute in the nature of a Foreign Enlistment Act, which was
proposed as an example by Lord Castlereagh, when urging a similar
statute upon Parliament; that in 1823 the conduct of the United States
on this whole head was proposed as an example to the British Parliament by Mr. Canning; that, in 1837, during the rebellion in Canada,
on the application of the British Government, and to its special satisfaction, as was announced in Parliament by Lord Palmerston, who was
at the time Foreign Secretary, our Government promptly declared its
purpose " to maintain the supremacy of those laws which had been
passed to fulfil the obligations of the United States towards all nations
which should be engaged in foreign or domestic warfare;" and, not
satisfied with its existing powers, undertook to ask additional legislation from Collgress; that Congress proceeded at once to the enactment
of another statute, calculated to meet the immediate exigency, wherein
it was provided that collectors, marshals and other officers shall " seize
and detain any vessel which may be provided or prepared for any mniitary expedition or enterprise against the territories or dominions of any
Foreign Prince or Power." (Statutes at Large, Vol. v. p. 212.) It is
something to forget these things; but it is convenient to forget still
further that, on the breaking out of the Crimean War, in 1854, the
British Government, jointly with France, made another appeal to the
United States, that our citizens " should rigorously abstain from taking
part in armaments of Russian privateers, or in any other measure opposed to the duties of a strict neutrality," and this appeal, which was
declared by the British Government to be "'i in the spirit of just reciprocity," was answered on our part by a sincere and determined vigilance, so that not a single British or French ship suffered from any
cruiser fitted out in our ports. *   *      *      *       *      *
This flagrant oblivion of history and of duty, which seems to be the
adopted policy of the British Government, has been characteristically
followed by a flat refusal to pay for the damages to our commerce
caused by the hostile expeditions. The United States, under Washington, on the application of the British Government, made compensation
for damages to British commerce under circumstances much less vexatious, and, still further, by special treaty, made compensation for damages " by vessels originally armed " in our ports, which is the present
case.  Of course, it can make no cifference-not a pin's difference-if
the armament is carried out to sea, in another vessel from a British port,
and there transshipped.  Such an evasion may be effectual against a
Parliamentary statute, but it will be impotent against a demand upon
the British Government, according to the.principles of International
Law; for this law looks always at the substance and not the form, and
will not be diverted by the trick of a pettifogger. Whether the armament be put on board in port or at sea, England is always the naval
base, or, according to the language of Sir William Scott, in a memorable
case, the " station " or " vantage ground,"-which he declared a neutral




23
country could not be. (Twee Gebroeders, 3 Robinson, R. 162.) Therefore, the early precedent between the United States and England is in
every respect completely applicable, and since this precedent was established - not only by the consent of England but at her motion - it must
be accepted on the present occasion as an irreversible declaration of
international duty. Other nations might differ, but England is bound.
And now it is her original interpretation, first made to take compensation from us, which is flatly rejected, when we ask compensation from
her. But even if the responsibility for a hostile expedition fitted out in
British ports were not plain, there is something in the recent conduct of
the British Government calculated to remove all doubt. Pirate ships
are reported on the stocks ready to be launched, and when the Parliamentary statute is declared insufficient to stop them, the British Government declines to amend it, and so doing, it openly declines to stop
the pirate ships, saying, " If the Parliamentary statute is inadequate
then let them sail." It is not needful to consider the apology. The act
of declension is positive, and its consequences are no less positive, fixig
beyond question the ~responsibility of the British Government for these criminal expeditions. In thus fixing this responsibility, we but follow the
suggestions of reason, and the text of an approved authority, whose
words have been adopted in England.
" It must be laid dowon as a maxim, that a sovereign, who, knowing
the crimes of his subjects, as for example that they praltise piracy on
strangers, and being also able and obliged to hinder it, does not hinder
it, renders himself criminal, because he has consented to the bad action, the
commission of wthich he has permitted. It is presumed that a Sovereign
knows what his subjects openly and frequently commit, and, as to his
potwer of hindering the evil, this likeoise is always presumed, unless the
want of it be clearly proved."'
Such are the words of Burlamaqui, in his work on Natural Law,
quoted with approbation by Phillimore in his work on the Law of
Nations.-(Phillimore, Vol. i. p. 237.) Unless these words are discarded
as " a maxim," —while the early precedent of British demand upon us
for compensation is also rudely rejected-it is difficult to see how the
British Government can avoid the consequences of complicity with the
pirate ships in all their lawless devastation.
IHere, in the potent language of a Senator of Massachlusetts, and the Chairman of the Committee on Foreign Affairs
in the- Federal Senate, is felicitously summed up the whole
matter.  New York is the naval blase of the fitting out of the
Meteor.  There is no authority, says iMr. Sumner, for the
dogma that, because it is permitted to furnish munitions of
war, it is allowable to supply ships of war.  The National
Government and the Supreme Court, have both asserted, and
maintained the distinction.  The Supreme Court is equally
positive against the theory that the offence is not complete
till the armament is put on board.  The idea that the juggle
of a pretended sale can protect, or redeem, the criminality of




24
the Meteor, is pronounced a hocues pocus, illsulting to comnon sense.  iMr. Sumner agrees with Dr. Phillimore in the
opinion that the dictum of Mr. Justice Story, in the case of
The Santissinac  Thinidad, is error.  The liability of the
United States for injuries inflicted on Spain, by a vessel circurnstanced like the Meteor, is declared to be undeniable by
the rules of international law.  I leave the Messrs, Forbes,
of Boston, to the companionship of the opinions of their
trusted Senator!
Iltles of   And here I may appropriately allude to the impression
nmatral duty
laid down by which the counsel endeavored to make on the court by a
President
Plerce in his citation firo  the annual messaoe of President Pierce for
Ias.    1855.  The extract read to the bench arrested my attention,
becaunse it seemed to run counter to everything which that
administration had elsewhere done or said in respect to neutral duties. It happened to me to have been somewhat intimately associated, in a very humble way, with that administration, and to have been cognizant of the deliberations
therein which were had on this very topic.  The court will
remember that it was the period of differences with England,
growing out of violations of our sovereignty by the British
minister, Mr. Crarmpton, and certain consuls.  MrI. Marcy
was in the State I)epartment, and his great brain and nature
were never more resolutely employed than in penetrating to
the bottom of this subject. He was powerfully reinforced
by the learning, and legal acumen of the Attorney-General,
Mr. Caleb Cushing, and the sound sense and unerring judgment of Mr. Guthrie, now a Senator of the United States;
and it was by the help of such wise counsellors, to aid in
ascertainment of American law, that President Pierce matured the views which he expressed to Congress in his annual message of 1855. Do those views sustain the dogmas
of the claimants of the Meteor 9 Far from it-so far from it
that they uphold and establish doctrines just the opposite.
Ily learned opponent quoted but one short paragraph fiom
the Message, and I compassionate him that he had not time




25
to look further.  Permit me to read all that portion which
has a bearing on the subject under discussion:
" One other subject of discussion, between the United States and
Great Britain, has grown out of the attempt, which the exigencies of
the war in which she is engaged with Russia induced her to make, to
draw recruits from the United States.
" It is the traditional and settled policy of the United States to
maintain impartial neutrality during the wars, which, from time to time,
occur among the great powers of the world.  Performing all the duties
of neutrality towards the respective belligerent States, we may reasonably expect them not to interfere with our lawful enjoyment of its benefits. Notwithstanding the existence of such hostilities, our citizens retain the individual right to continue all their accustomed pursuits, by
land or by sea, at home or abroad, subject only to such restrictions in
this relation, as the laws of war, the usage of nations, or special treaties,
may impose; and it is our sovereign right that our territory and jurisdiction shall not be invaded by either of the belligerent parties, for the
transmit of their armies, the operations of their fleets, the levy of troops
for their service, the fitting out of cruisers by or against either, or any
other act or incident of war. And these undeniable rights of neutrality,
individual and national, the United States will uncler no circumstances
surrender.
" In pursuance of this policy, the laws of the United States do not forbid their citizens to sell to either of the belligerent powers, articles contraband of war, or to take munitions of war, or soldiers, on board their
private ships for transportation; and although, in so doing, the individual citizen exposes his property, or person, to some of the hazards of
war, his acts do not involve any breach of national neutrality, nor of
themselves implicate the Government. Thus, during the progress of the
present war in Europe, our citizens have, without national responsibility therefor, sold gunpowder and arms to all buyers, regardless of the
destination of those articles. Our merchantmen have been, and still continue to be, largely employed by Great Britain, and by France, in transporting troops, provisions, and munitions of war to the principal seat
of military operations, and in bringing home their sick and wounded
soldiers; but such use of our mercantile marine is not interdicted either
by the international, or by our municipal law, and therefore does not
compromit our neutral relations with Russia.
" But our municipal law, in accordance with the laws of nations, peremptorily forbids, not only foreigners, but our own citizens, to fit out,
within the limits of the United States, a vessel to commit hostilities
against any State with which the United States are at peace, or to increase the force of any foreign armed vessel intended for such hostilities
against a friendly State.
" Whatever concern may have been felt by either of the belligerent
Powers lest private-armed cruisers, or other vessels, in the service qf' one,
might be fitted out in the ports of this country to depredate on the property of the other, all such fearss have proved to be utterly groundless.
Ourl' citizens lhave been withheld from any such, act or purpoose by good
faith, and by respect for the law."
So with citations made from  Opinions of the AttorneysGeneral.  He referred to but one, and that the brief reply




26
of Mr. Rush in 1816.  If the counsel had pressed on, and
looked into the third volume (pp. 739-741), and the fifth
volumle (p. 92), he would ]lave found most instructive mlatter, adverse to all the legal doctrines for which he contends
to be sure, but yet valuable matter.  The opinion of Mr.
Reverdy Johnson, in the fifth volume, will come under consideration hereafter, but from that of Mr. Legare, in the third
v-olume, I will read now a brief extract.  That accomplished
jurist says:
" The reasoning on this subject is shortly this: The policy of this
country is, and ever has been, perfect neutrality, and non-interference
in the quarrels of others; but, by the law of nations that neutrality
may, in the matter of furnishing military supplies, be preserved by two
opposite systems, viz.: —either by furnishing both parties with perfect
impartiality, or by furnishing neither. For the former branch of the
alternative, it is superfluous to cite the language of publicists, which is
express, and is doubtless familiar to you. If you sell a ship-of-war to
one belligerent, the other has no right to complain, so long as you offer
him the same facility. The law of nations allows him, it is true, to confiscate the vessel as contraband of war if he take her on the high seas;
but he has no ground of quarrel with you for furnishing, or attempting
to furnish it. BEt, twith a full knowledge of this undoubted right of nezutrals, this coontry has seen fit, with regard to ships-of-war, to cadopt the
other bracnch of the alternative-less profitable with cc view to comzmerce,
but more favorable to the preservation of a state of really pacific feeling
within her borders-she has forbidden all furnishing of them under severe
penalties. The memorable act of 1794 consecrated this policy at an
early period of our federal history; and that act was only repealed in
1818 to give place to an equally decided expression of the legislative
will to the same effect. Whatever may be thought of the spirit and
policy of the law, its scope and objects are too clear to be misunderstood."'he quali-   In the very searching argument of the counsel on the
ty antd de-,nee, of the other side, he had much to say in respect to the quality, and
inculpates  degree of intent, which the Court must find before it can decree the forfeiture of this vessel.  Much of what I desire to
submit on this head, I shall postpone to a point further on
in my argument, but here let me deny utterly that the
illegal intent must needs be proximate, in the sense contended
for by him.  The rule, settled in Federal executive administration at Washington, is quite different.  There has been
before the Department of State a case raising the very question. It is reported in full, in executive documents of the




27
first session of the Thirty-first Congress, Vol. iii. part 1. The
main facts are these:
In the year 1848, Germany, partaking of the political
commotion which at that time spread so generally over the
Continent, made effort for the establishment of a great empire under one federal head, and, as the first step, a call was
made on Archduke John of Anstria to act as vicar, and the
city of Frankfort was selected as the temporary seat of the
German central power, where a parliament assembled, conmposed, it was assumed, of the representatives of the people
of Germany. The new government desired to create a navy,
and a commission was sent to the United States for the purpose of purchasing one or more war steamers. The assistance of the Navy Department, in the selection of vessels,
was afforded to the representatives of the new German government. A  steamer, called the United States, was purchased by the German agents, and steps were at once taken
to convert her into a vessel of war. Facilities were affbrded
at the Brooklyn Navy Yard, by direction of the Secretary of
the Navy, for making the required alterations, and the work
was actually entered upon; but on April 2, 1849, soon after
the accession of President Taylor, a letter was addressed by
the representative of Denmark in this country, to the Secretary of State (Mr. Clayton), calling his attention to the fact
that the steamer, United States, was undergoing alteration for
the purpose of converting her into a war steamer, and that war
existed between the Central Government of Germany, and
Denmark. The Danish Legation also informed the Secretary of State that the steamer United States was, by express
stipulation, to retain her American character until delivered
in a German port, so as to have the protection of the American flag in crossing the ocean. Within a few days after the
reception of this communication, the Secretary of State, under date of April 10, 1849, passed a note to the Minister, in
this country, of the German Empire, informing him of the
formal protest of Denmark against the fitting out of the




28
steamer United States, and saying in substance that the
steamer would not be permitted to leave the country, unless
the Ministel of the Germanic Empire would give his'" solemn
assurance" to the President, that the vessel in. question " is
not destined and intended to be and will not be, employed
by the German Government against any power with which.
the United States are now at peace."  The German Minister
replied to the note of the Secretary of State, under date of
April 14, 1849, and said that the real object in purchasing
the vessel was to take her to Bremerhaven, there to receive
the further orders of the German Government; that in fitting
her out, it was intended to use her for war purposes at some
future time, but that such ulterior intent is not made climinal by the act of April 20, 1818.  The German Minister informed the Department of State, that he lhad obtained the
professional opinion of a distinguished mlember of the Nlew
York bar, to the effect that the intent of the neutrality act
is the proximate, and not ulterior intent; that the only intent
punishable by the act, was an intent to cruise and commit
hostilities immediately utpon leaving the port of Vew  iYork.
Upon receipt of this commnunication, the whole subject was
referred to the Attorney-General, Mr. Reverdy Johnson, for
an official opinion, which was given on the 28th instant, and
fromn  which (Opinions of Attorney-Generals, Vol. v. p. 92)
I ask permission to read to the court the following extract:
It was by no means the object of the act of 1818 to distinguish between a proximate or immediate intent, and any other intent, in the use
of the word " intent " in its third section. Any intent, direct or contingent, to cruise or commit hostilities against a nation with which the
nation fitting her out is then at war is within the act. The design was
to prevent the United States from aiding either belligerent; to observe
an absolute neutrality; and to do this by prohibiting the fitting out of
vessels for the service of either in our ports.
To construe the law as Baron Boenne suggests, would be to render
it almost wholly nugatory. This is evident from a consideration of the
instance before us. The proximate intent, it is contended, is not to
cruise or to commit hostilities against Denmark. But the vessel is to
repair to Bremerhaven, there to await orders; and what those orders
are to be, it is impossible to anticipate. They must, of necessity, depend upon contingencies which shall then exist, and which cannot now
be foreseen.




29
The design, therefore, to cruise, &c., is not disavowed. The warlike purpose of the vessel is not disclaimed; but, because there is no
actual present intent to cruise, &ec., and because she may reach the place
of her first destination without meeting an enemy, and peace may be
restored before she receives orders to cruise, the intent of her equipment
is innocent. Such is not the meaning of the law.
In this opinion I am perfectly clear; and I find myself supported by
several opinions in analogous cases heretofore given by this office, and
upon more than one occasion sanctioned by the Supreme Court.
This opinion of Mr. Johnson was transmitted to the German Minister, who, in turn, submitted to the State Department, criticisms upon the legal conclusions of the AttorneyGeneral, and insisted that the law punished a proximate,
and not an ulterior intent.  On the 5th of May, 1849, Secretary Clayton replied to the legal propositions of the German
Minister, and informed him that if there was any intent, before leaving the United States, that the employment of the
vessel should be warlike, then the adventure was not commercial, and was within the denunciation of the neutrality
act of 1818.  He added that it made no difference whether
the intent be proximate or remote.  It was enough that
there was intent that the vessel might be used offensively
by one belligerent against another.  The German MlIinister,
on receipt of this last communication from  the State Department, indulged in some suggestion of a purpose to bring
the matter before the judicial tribunals of the United States,
but, in the end, yielded to the imperative requirement of the
State Department, that the vessel should not leave until a
bond was given, under the eleventh section of the act of
April 20th, 1818. The condition of this bond was, that the
ship should never be used against any country or people at
peace with the United States.
But, says my learned opponent, there is but one yrncijc-al seT'en third
offence in the statute of 1818, which is, " fitting out atnd the88, provides  fobr
arming; " and all the other offences or unlawful acts de- more than
one    prinscribed in the statute, are merely secondarcy acts, contributory cipalojejnce,
to the perpetration, or completion, of the principal and only ethese iosubstantial offence of fitting out and arming; and, therefore, primary and
since the MI!eteor was not armed, and there is no evidence f.   ot



30
that she ever was to be armed, in New York, her condemnation cannot be decreed.  To reach this construction, he is
compelled to employ a spirit of narrow criticism on a great
remedial statute, designed to supplement the law of nations,
and to effectually maintain the power and neutrality of the
country-a criticism which opens a wide door to the perpetration of the very acts which the law of nations itself denounces, and which the statute was manifestly framed to
prevent.
Whatever may have been the nature or the causes of the
tog, in which the learned Barons of the Court of Exchequer
involved themselves in the case of the Alexandra, there can
be no excuse, for an American tribunal, to be derived from
any of the reasoning in that case, if it shall appear that onur
statute was framed with the intent to reach other principal
offences, besides that of fitting out and arming, and that this
idea of subordinate or subsidiary offences, contributory to the
one principal offence of fitting out andc arming, never entered into the legislative intention of our statute in framing
its subsequent clauses.
In  order that we may consider the objection  of the
claimants the more intelligently, let us recur to the words of
the section we are to interpret.  It reads thus:
SEC. 3. And be it further enacted, That if any person 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 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 against the subjects, citizens, or property of
any foreign prince or state, or of any colony, district or people, with
whom the United States are at peace, or shall issue or deliver a commission within the territory or jurisdiction of the United States, for any
ship or vessel, to the intent that she may be employed as aforesaid,
every person so offending shall be deemed guilty of a high misdemeanor,
and shall be fined not more than ten thousand dollars, and imprisoned
not more than three years; and every such ship or vessel, with her
tackle, apparel and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and
equipment thereof, shall be forfeited; one half to the use of the informer, and the other half to the use of the United States.
The first proposition of law on which the learned counsel




31
rests, is this: That there is but one principal offence in this
statute, the corpus delicti of which is " fitting out and arming' of a vessel, with intent that it shall be employed in
the service of a foreign State to cruise against another foreign State; that this offence may be committed in three
forms, viz., doing the thing itself, attempting to do it, or
procuring it to be done, and that all the other acts, subsequently denounced in the third section, are not principal and
substantive offences, but merely acts contributory, in different ways, to the perpetration of the principal offence, in one
or another of the three ways in which that principal offence
may be committed.  If this is a sound construction, our
Neutrality Act is a very ineffectual statute.  If it is not a
sound construction, the Act is complete for the prevention
of the mischiefs which it was designed to reach.
In order to judge of the soundness of this construction,
it is necessary, first, to see what was the history and purpose
of this legislation, when it was first introduced into our
statute.
The origin of this law, asdI have already explained, goes
back to the year 1794, a period when the Administration at
Washington was doing all that legislative and executive
wisdom could then devise, to preserve this country in an
attitude of neutrality, in respect to the European wars that
followed the French Revolution. It is not to be lightly
assumed, that an object of such vast importance, would have
been deemed by that Congress to have been effectually accomplished by a law, that should describe and check but one
of the offences by which the mischiefs, intended to be prevented, can be easily brought about. Before such a supposition can be adopted, we nmust look to see what were regarded as offences against the rights and sovereignty of neutrals by the law of nations; what were the means, anterior
to special provisions of municipal law, which the law of nations afforded for the prevention of those offences, and for
the remedy of the wrongs to which they might lead.




32
It is necessary to look to these things, because the statute
is a provision of municipal law, manifestly designed to supply
remedies, and means of prevention, which the law of nations
does not afford proprio viyore.
We have already seen that it is an undoubted principle
of the law of nations, that any augmentation by a belligerent
of his military force, within the territory of a neutral, is an
offence against the dignity and sovereignty of the neutral,
which he may resent and prevent if he sees fit. This is especially true of all augmentation of naval force, which can be
obtained in a great variety of forms, from the simple hiring,
or purchase of unarmed vessels, to the procurement of perfectly equipped and armed cruisers. But the means of prevention which, in the absence of statutory law, the law of
nations places in the hands of the neutral, by the mere force
of its general principles, are few  and ineffectual.  If a belligerent augments his military force by procuring, or fitting
out, a vessel in the territory of a neutral, the courts of the
neutral may declare void all captures made by such cruiser,
which are brought within their reach, as was done in the
Scantissinma T'inidcad and Gran Para, and may actively interfere to restore the prize to their true owners. But, in the
absence of special declarations of the sovereign will of the
neutral nation, this is about all that can be accomplished.
N'othing can be effectually done, in the way of prevention, without some provision of lmunicipal law; and, therefore, when we find such provision carefully made, with a
legislative definition of offences, and a manifest intent to prevent the mischiefs, which the law of nations emupowers the neutral to prevent, if lie sees fit, the presumption is that the
prevention was intended to be effectual, unless the contrary
clearly appears.
Now, nothing can be imagined or suggested, nothing has
been, which has any tendency to show that Congress designed, by the enactment of this law of 1818, to leave easy
opportunities for effecting the mischiefs which were to be




33
prevented. On the contrary, the whole scope and spirit of
the law disclose a manifest intent to provide an effectual, and
complete prevention of those mischiefs.
If, then, it was designed to prevent the departure from
our ports of an armed vessel, why should it not equally have
been designed to prevent the departure of a vessel fitted in
every way to be armed, and capable of becoming at once a
formidable cruiser, as soon as a few guns could be put on
board?  If the offence of fitting out and arnming a vessel
was to be declared a substantive and principal offence, why
should not the' furnishing,"' or " fitting out," of a vessel,
with intent that she mnay be employed against a fiiendly
power, be equally made a substantive and principal offence?
The one is equally as important to be prevented as the other.
The same violation of the rights, dignity, and sovereignty of
the neutral nation, occurs in the one case, as in the other.
The mischiefs that may flow from one, are the same, in kind
and degree, as in the other; for a cruiser, though unarmed
when it leaves the neutral port, may be armed, as was the
Alabama, when out of the territorial limits, without entering
another port; and even when unarmed, it might make captures from the mere terror of superior numbers of its crew,
or by a mere display of its flag, or by stratagem.
This statute is therefore to be construed by keeping in
view the mischiefs which were intended to be prevented;
and if the language shows that it describes several offences,
any one of which, if unchecked, would produce the mischiefs, against which it was the purpose of Congress to guardl
then each is a several, substantive, and principal offence, and
neither of them is to be regarded as an offence subsidiary, or
contributory to the commission of any other.
Now, it cannot be denied that this section embraces the
following offences:
1. Fitting out ctnd carming a vessel, or attempting to do
it, or procuring it to be done, with intent that it shall be enlployed in the service of a foreign state, to cruise or commit
3




34
hostilities against any people or the property of any people
with whoml the United States are at peace.
2. Being knowingly concerned in "furnishing" any vessel, with the like intent.
3. Being knowingly concerned in " fitting out" any vessel, with the like intent.
4. Being knowingly concerned in " arming " any vessel,
with the like intent.
5. Issuing or delivering a commission within the terri,
tory, or jurisdiction of the United States, fcr any vessel, to
the intent that she shall be employed as aforesaid.
Here, beyond all possibility of doubt, are five offences
described in careful terms. But the argument is, that three
of them, the second, third, and fourth, are merely contributory to the commission of the first.  What does the learned
counsel say of the fifth-the issuing of a commission for any
vessel, with the intent that she may be so employed? Does
he include it, or exclude it, by his contributory argument?
Is it a principal and substantive, or only a subordinate
offence, auxiliary of the first? He has not said.
It is easy to see that the fallacy of the argument consists,
first, in assuming that the first offence was not sufficiently
provided against, in the first clause of the section, and that
it was necessary to go on and provide against minor and
contributory offences; and secondly, in the further assumption that the language employed to describe those minor
and subsidiary offences, is, in effect, the same as the language employed to describe what is claimed as the sole,
principal offence. Neither of these is true, if we suppose
the intention of the law-makers to have been to make an
effectual law.  The first offence, fitting out and arming, or
preparing an arrzed ship, is fully described and covered by
the first clause of the section. It may be committed by doing the thing, or by attempting to do it, or by procuring it
to be done.  The acts of persons who might participate, not
as principals or owners, but as contributory employers, could




35
be punished under this part of the statute, because, whatever
might be the contributory part of their service, if they were
affected with the intent required by the statute, they would
be guilty with others of fitting out an arnmec ship, or of attempting to do it, or of procuring it to be done. There was,
therefore, no necessity for providing against subordinate services, in preparing the kind of ship described in this clause,
namely, an armecd ship.  This was already done, by a comprehensive provision, which embraces every act, or attempt
at an act, which enters into the preparation of an armed
ship, with the intent she shall be-i. e., with the knowledge
that she is to be-employed in the prohibited service of a
foreign state.
Put where the statute has made this provision for the
case of an armed ship, it has by no means exhausted the
mischiefs which may be done by improper augmentations of
belligerent force within the territory of a neutral; and accordingly, it goes on to create other offences, which are just
as much principal offences, in respect of the mischiefs which
they create, as the offence of preparing an acrmcd ship; and
these offences are several, and are described in such a way
as to leave no doubt that they are each distinct and principal offences.  One of them is, being knowingly concerned in
" furnishing " any vessel; not any armed vessel, but any
vessel; with the intent that she shall be employed against a
friendly power, as a cruiser, or in the commission of hostilities.
This provision is to'be read, just as if it stood by itself,
in a separate section, or statute; because there can be no
doubt that one of the things, against which Congress intended to guard, was the procurement, in our territory, of any
vessels, armed or unarmed, at the time of procurement, with
the intent that they might be used, in the service of a foreign power, to cruise against a people, or commit hostilities
against a people, with whom  we are at peace.  In this
offence, the only limitation on the character and uses of the




36
vessel, is that she is to be used as a cruiser, or to commit
hostilities; and therefore the suggestion of the learned counsel for the claimant, that belligerents have been suffered to
hire transports in neutral ports, and perhaps in our own, has
no tendency to show that the offence of" furnishing " a vessel is not a principal offence under our statute, if the vessel
furnished is designed as a cruiser, or to commit hostilities.
Hiring transports to carry land forces or military supplies, is
not an augmentation of the active and aggressive naval force
of a belligerent, but obtaining a vessel as a cruiser, or to
commit hostilities, clearly is a direct and palpable augmentation of the aggressive means of naval warfare, and it is certainly prohibited by this statute. For the phrase " furnishing any vessel " was clearly not used to describe the putting
on board furniture, or supplies, or rigging; all that is described in the other offence of " fitting out any vessel." But
the term " furnishing " relates to the vessel itself, and means
affording or supplying any vessel.  It is the appropriate
term  to comprehend the acts of selling or buying, hiring,
malting or receiving a gift or loan of any vessel, or doing
any other act by which she is to be put into the control or
destined to the use of the foreign belligerent, as a cruiser, or
to commit hostilities.
The next offence described in the statute is, being knowingly concerned in " fitting out any vessel," with the intent
that she may be so employed.  The same reasoning is applicable to this offence, and conducts to the same conclusion
that it is a substantive and principal offence. If it were not
made such, then one set of men could fit out the vessel with
every capacity for becoming a naval cruiser, as soon as she
should receive her armament, and do it with perfect intent
that she was to be a naval cruiser for a foreign belligerent,
and another set of men could put her armament on board,
either within or without our territory, with the same intent,
and Set, unless the two parties could be connected in a concerted conspiracy, acting in concert, to perpetrate the offence




37
of fitting out an armed ship, neither of them could be punished, and the vessel could not be stopped. To prevent this
consequence, Congress has made it an offence to be knowingly concerned in fitting out, not any armed vessel, but any
vessel, with the intent that she may be employed by a foreign belligerent as a cruiser, or to commit hostilities; and
nothing can be plainer than the proposition that acts may
be done in the fitting out of a ship with that intent, which
do not embrace putting guns on board, but which prepare
and fit'her to receive and use her guns as soon as she gets
them.
The next offence is, being knowingly concerned in "' arming " any vessel, with the prohibited intent. And the reason
for making this a distinct and principal offence is, that if it
were not so made, and if the offence of fitting out were not
so made, then A, in the port of New York, could sell guns
to be carried out of the port and put on board the vessel,
with a perfect knowledge that the vessel was to be a cruiser
for a foreign belligerent, and B could fit out the vessel in all
other respects, with the samle knowledge, and yet, if they did
not act together, and the vessel were not armed when she
sailed, no offence would be committed by either of them.
Congress cannot be supposed to have overlooked this manifest result. It is, therefore, made an offence to be knowingly
concerned in "' arming " any vessel; and it is so made with
a clear prescience of the fact that a man may stand on our
soil, and be knowingly concerned in arming a vessel which
lies more than three leagues from the coast, and which there
receives the arms that he sells to others to send to her; or
that he may supply her arms, without having any knowledge
of those who fitted her out in any other respect, or without
any direct cooperation with them.
The next offence is issuing or delivering any commission,
within our territory or jurisdiction, for any vessel, to the intent, &c. If this is a merely auxiliary offence, contributory
to the principal offence of fitting out an armed ship, then




38
the commission may be issued here, openly and publicly, to
a ship which has been fully prepared to be a cruiser, and
wants nothing but her guns; she can sail down the Narrows,
past every fortress of this neutral republic, openly take her
guns at sea, and cruise without molestation against a nation
with which we are at peace. The consequence of such a
construction of the statute would be that our ports would
swarm with the agents of foreign belligerents, openly and
publicly issuing commissions to vessels so prepared.
It is respectfully submitted to the Court that the comlmon sense and uprightness of the nation will not sanction a
construction which makes but one substantive and principal
offence in this statute, reduces all other offences described in
it to the position of auxiliary and contributory offences to
the main offence, and thus opens the door to the greatest
abuses. Whatever revelations may have taken place in
England of defects in their neutrality law, exhibiting the
necessity for further legislation, we have no occasion and no
excuse for casting a similar reproach upon our Congress of
1794, or that of 1818. If the British record has not been
entirely clean in this respect, ours has been, at least so far as
the legislative intention is involved, free from the shadow
of a stain. We meant to make, and did make, an efficient
law; one that has met and obviated every device by which
the mischiefs of a violated neutrality can be perpetrated, by
breaking up these devices into distinct and separate offences,
and prohibiting each and all of them. Congress has done its
full duty. It is for the judicial and executive departments
of our Government to do theirs, and no doubt can be entertained that they will do it.
This construction for which I contend is not only manifest on the face of the statute, but it is the settled judicial
construction of the statute given to it by the Supreme Court
of the United States in the case of the United States vs.
Quincy, already referred to. This was a criminal indictment, and the defendant had, therefore, all the right to ask




39
for a strict construction of the statute that a supposed offender can ever have.  He tool the same ground that is now
taklen by the learned counsel for the clainiants.  He was indicted for being knowingly concerned in fitting out the Bolivar, with the intent, &c.; and he contended that, inasmuch
as the vessel, when she left Baltimore, was not armed, or
prepared for war, or in a condition to commit hostilities, he
ought to have been acquitted.  He prayed in the court below an instruction to the jury to this effect. The court were
divided in opinion upon it, and certified the question to the
Supreme Court. The Supreme Court expressly overruled
the prayer, and held that the offence of being knowingly
concerned in fitting out, with the intent, &c., could be coinmitted, although the vessel was not armed, or in a condition
to commit hostilities, when she left the United States. They
held, too, that if the intent was once formed within the
United States, it was not necessary, in order to constitute
the offence of being knowingly concerned in fitting out, with
that intent, that the design or intention should be afterward
carried into execution.  This case, therefore, disposes of the
doctrine that the offence of being knowingly concerned in
fitting out, is a subsidiary and contributory act, to the larger
offence of fitting out and arming, or that it is necessary to
charge and prove that the vessel was fitted out and armed
within our jurisdiction, before the punishment of forfeiture can be inflicted for the separate offence of furnishing the
vessel, or being concerned in fitting her out, or being concerned in arming her, or issuing a commission for her. Every
one of these offences may be committed before the vessel is
completely equipped as an armed cruiser, or in a condition
to commit hostilities; and if any one of them has been conmmitted by anybody within our jurisdiction, in respect to this
vessel, the court must pronounce the forfeiture.
This brings us to another position of the counsel for the Thereisno
necessity ior
claimants, which is, that before this court can pronounce a a personalvi
forfeiture under the present libel, it is necessary for the Gov- fothe o-i




40
toulwtolarwo,r ernment to prove that one of these offences has been comto worke tb-  e
leitureofthe mitted by a designated person, either by producing a record
of the conviction of that person in a common law court, or
by proving him under this libel to have been the offender;
and that, unless personal guilt is fastened upon some named
person, or some persons named and designated as the offenders, there can be no forfeiture of the vessel.
This position, I respectfiully submit, is founded in a misapprehension, or oversight of a great distinction between
forfeitures that are worked in the admiralty jurisdiction and
under admiralty seizures, and forfeitures that result from
conviction and judgment in a court of common law. And,
right here, let me remark that this failure of my learned
friend, to realize that this is an admiralty proceeding in rem,
permeates and vitiates his whole argument. He affects to
consider this a criminal trial.  He constantly talks of a
criminal forfeiture, as different from any other statute forfeiture, in respect to the rules and evidence to be applied.
He implores the Court to reflect that Mr. Forbes, or Mr.
Somebody else, is on trial, in assumed forgetfulness that the
steamship Meteor, and nothing else, is inculpated before
your Honor.
But, returning to the objection, let us consider it:
First, in relation to the supposed necessity for producing
in evidence here, a personal conviction for the offence in a
court of law, before a forfeiture of the vessel can be decreed:
At the common law, certain capital felonies were followed by a forfeiture of the lands or goods of the felon.
Until conviction and judgment, however, the forfeiture was
not complete, because it was not worked by a proceeding in
rem, but by the legal effect of the personal conviction, which
divested the title of the convict, and vested it in the Crown.
Hence the title of the Crown was inchoate, until a record of
the personal conviction of the offender could be produced.
But it has always been otherwise in reference to proceedings




41
in rein, for violations of the revenue laws, and offences
against the law of nations.  In these cases, the thing itself
is regarded as the primary offender; and, although it must
have been placed in that predicament by some human agency, and although the person who does the prohibited act
may also be punishable, the two proceedings are entirely
distinct from each other, and no conviction of the personal
offender is necessary to work a forfeiture of the offending
thing.  This distinction has been fully and emphatically
recognized by the Supreme Court of the United States,
which has, more than once, overruled the very objection
that is now  taken by my learned opponent.  Thus in the
Palmyrca (12 Wheaton, 1), there was a proceeding in rern to
forfeit the vessel for the offence of piratical aggression, under
the acts of March 3, 1819, and May 15, 1820. The objection
was taken that the forfeiture must be preceded by a conviction for the personal crime; but the Supreme Court held
that it was not necessary to allege or prove any conviction
of a person for the criminal offence. The opinion of the
Court was delivered by Mr. Justice Story, and the following
is the answer made by him to the objection:
"The other point of objection is of a far more important and difficult nature. It is well known, that at the common law, in many cases
of felonies, the party forfeited his goods and chattels to the crown.
The forfeiture did not, strictly speaking, attach in rem; but it was a
part, or at least a consequence, of the judgment of conviction. It is
plain, from this statement, that no right to the goods and chattels of
the felon could be acquired by the crown by the mere commission of the
offence; but the right attached only by the conviction of the offender.
The necessary result was, that in every case where the crown sought to
recover such goods and chattels, it was indispensable to establish its
right by producing the record of the judgment of conviction. In the
contemplation of the common law the offender's right was not divested
until the conviction. But this doctrine never was applied to seizures
and forfeitures created by statute, in rem, cognizable on the revenue
side of the Exchequer. The thing is here primarily considered as the
offender, or rather the offence is attached primarily to the thing; and
this, whether the offence be malum _prohibitum, or, malumr in se. The
same principle applies to proceedings in rem, or seizures in the admiralty. Many cases exist, where the forfeiture for acts done attaches
solely in rem, and there is no accompanying penalty in personam.
Many cases exist, where there is both a forfeiture in remn and a personal
penalty. But in neither class of cases has it ever been decided that the




42
prosecutions were dependent upon each other. But the practice has
been, and so this court understand the law to be, that the proceeding
in iwem stands independent of, and wholly unaffected by any criminal
proceeding in per sonam. This doctrine is deduced from a fair interpretation of the legislative intention apparent upon its enactments. Both
in England and America, the jurisdiction over proceedings in beem, is
usually vested in different courts from those exercising criminal jurisdiction. If the argument at the bar were well founded, there could
never be a judgment of condemnation pronounced against any vessel
coming within the prohibitions of the acts on which the present libel
is founded; for there is no act of Congress which provides for the personal punishment of offenders, who commit " any piratical aggression,
search, restraint, depredation or seizure," within the meaning of those
acts. Such a construction of the enactments, which goes wholly to defeat their operation, and violates their plain import, is utterly inadmissible. In the judgment of this court no personal conviction of the offender is necessary to enforce a forfeiture in remn in cases of this nature."
Now, it is true that in this case of the Palmyrca, the
statute did not prescribe any personal punishment, and that
the neutrality act does.  But the ruling of the court embraces all cases of this nature, whether there is a double proceeding, one against the thing and one against the person, or
whether there is only a prosecution against the offending
thing.
In the subsequent case of the lfaclek Ad4el (2 HXoward,
210) the very same objection was again overruled, and the
principle laid down in the case of the Palmyra, that the two
proceedings are entirely distinct from each other, was again
affirmed in the most pointed manner, and that, too, in a case
where the owner was entirely innocent.
In the case of the United,States vQ. tke schooner L ittle
Chkarles (1 Brockenbrough, 347), which was a proceeding
against a vessel for violating the Emlbargo Laws, Chief-Justice Marshall acted on the same distinction between an offending thing and an offending person, where the owner was
entirely innocent.
Indeed, it is wholly unnecessary to go into citations from
the adjudged cases. This court is perfectly familiar with the
constantly recurring cases of smuggling, where, although the
personal offence of smuggling is punishable by statute, it has
never been deemed necessary, in order to forfeit the vessel




43
from which the smuggling takes place, either to produce a
record of personal conviction, or allege, or prove who did
the offending act, provided it is made to appear that somebody unlawfully brought goods on shore.  The hardship to
the owner, in such cases, is imposed by the policy of the
law, in order to make him  guard his property against unlawfuil uses, as an instrument for violating the laws of the
land, and his personal guilt or personal innocence is an immaterial inquiry, provided his vessel is affected with the unlawful acts which the law makes the ground of its forfeiture.
The answer to the objection that we produce no record
of a personal conviction, is also an answer to the objection
that we must allege and prove, under this libel, who did the
unlawful acts which are to work a forfeiture of the vessel.
The authorities are all the other way, and so is the principle
on which forfeitures in the admiralty invariably proceed.
In a proceeding against a thing, by libel or information in
the admiralty, to enforce a forfeiture for any offence, the sole
inquiry is whether the property has been placed in the predicament to which the law attaches the forfeiture; and although the property, as inanimate matter, cannot put itself
in that predicament, or do the unlawful acts without human
agency, yet if the co-urt can see that the unlawful. acts have
been done by somebody, with, or in reference to, that property, the penalty of forfeiture of the property is incurred,
because the owner is bound to prevent such acts.
But it is argued in substance in the present case that the InetSs ot
unlawful acts are of such a nature that the court cannot ar- that the
vessel paryive at the conclusion that they have been committed, so as tieipate n
any of the
to affect the vessel with forfeiture, unless satisfactory proof prohibited
acts, which
is produced of the persons by whom they were done; and it affect the
vessel with
is even contended that those persons must be the owners, brfeitue,
under the
either actually or constructively; and therefore, by way of neutrality
pushing your Honor into the necessity of finding that gentlemen of great personal respectability, and eminent commercial standing, — like Messrs. Forbes, —have violated the




44
law of the land, he falls back upon the position that actual
or constructive connivance of the owner is essential to a forfeiture. Hence he argues that the offences are of such a
nature that they cannot be imagined to have been perpetrated without the knowledge and consent of the owner or
his agent.
Now, the examination of the statute which has already
been made, shows that necessarily it does not contemplate
the participation of the owner in any of the prohibited acts
which are to affect the vessel with forfeiture; any more than
the statutes against smuggling contemplate the actual or
constructive participation of the owner in that offence, before his vessel can be forfeited. This statute is one of those'where certain unlawful acts, being done with or concerning
a vessel, to the extent described, the forfeiture of the vessel
follows, from  considerations of high public policy, either
with or without the participation of the owner. In the first
place, it is to be observed that the statute says nothing about
the owner. It provides that if " any person," not any owner,
but any person, shall do the prohibited acts within the
United States, with a certain intent, forfeiture of the vessel
shall follow; and it is quite evident that if the law had confined its denunciations to acts done by the owner, or with
his personal, or constructive participation, the mischiefs intended to be prevented could never be effectually reached.
In the next place, the prohibited acts, are acts which can be
done without the personal or constructive participation of
the owner, and it is evident that Congress intended, by the
searching provisions of this statute, not to confine the forfeiture to cases where the owner could be affected with personal guilt. Undoubtedly, if the owner were indicted for
the misdemeanor, he could not be fined and imprisoned
without proof of his personal guilt; but the error throughout, in the argument of the learned counsel, we respectfally
contend, consists in assuming that the forfeiture of the vessel
proceeds only as a consequence of personal guilt of the




45
owner. This is'not true, either when we consider the nature
of the offences, or the policy of the law. Thus, the offence
of being knowingly concerned in " furnishing " any vessel to
for aeign power, with the prohibited intent, is not only an
offence denounced against " any person," but it is an offence
which may be committed by persons other than the owner,
and without his knowledge; and if it has proceeded so far
as to engage the vessel, or to put her under the control, or
afford her to the preparations of such foreign power, or its
agents, there can be no doubt that this offence has been committed, and the vessel stands affected by it, because it was
the duty of the owner not to suffer his vessel to fall into this
predicament. So, too, the offence of being knowingly concerned in fitting out any vessel, with the unlawful intent
that she is to be used as a cruiser in the service of a foreign
belligerent, is an offence which " any person " can commit
who is not an owner, and can commit without the knowledge of the owner; and if it las proceeded so far as the putting anything on board or making any preparations of the
vessel with the intent that she shall be employed in such
foreign service, the vessel stands affected by it, because it
was the duty of the owner to prevent it; and the case of
the United States vs. Quincy is a direct and conclusive authority to the point that if the intent and design were once
formed, and any unlawful acts were done under it, within the
United States, the offence is not purged, although the intent
and design mnay be subsequently abandoned. So, also, the
offence of being knowingly concerned in arming any vessel,
or issuing a commission for any vessel, with the prohibited
intent, may equally be committed without the knowledge or
participation of the owner. The same thing is true of the
offences of fitting out and arming, or of attempting to do it,
or of procuring it to be done, which the learned counsel admits are all principal offences, under this act; for all of them
may be committed by persons other than the owner, and
w ithout his knowledge or consent; and when we consider




46
that the statute expressly declares that if committed by any
person, the  forfeiture shall follow, it would be a very
strained and unwarrantable construction for this court to interpolate the words: "with the knowledge, actual or constructive, of the owner."
True it is, in respect to most of these offences, that there
may be more or less probability that they have, or have not,
been actually committed by persons other than the owner,
according as the evidence does, or does not, tend to show
complicity, or negligence, or willingness, on the part of the
owner, or his agent. But this probability can, by no sound
construction of this statute, and by no sound rule of law, be
turned by the court into an absolute requirement of proof
that the owner, or his agent, participates in the unlawful act,
or intent. If the court is satisfied that somebody did allny of
the prohibited acts, with the unlawful intent, the forfeiture
is complete.
Inspection of the phraseology used by Congress in the
slave-trade acts confirms us in our theory that the Federal
Legislature intentionally employed the words " any person,"
for, in those acts, the limitation is to "' either master, factor,
or owner; " and in the lneutrality act there is no restriction.
I need only call the attention of your Honor to the
fiftieth section of the Collection Act, of 1799, which forfeits
the most valuable ship which ever floated, if merchandise, to
the value of four hundred dollars, be unladen by a passenger
without a permit, and that where the owners, the captain,
and all the crew, use their utmost endeavors to prevent such
illegal landing.
This section is in these words:
"N o goods, wares, or merchandise, brought in any ship or vessel
from any foreign port or place, shall be unladen or delivered from such
ship or vessel, within the United States, but in open day, that is to say,
between the rising and setting of the sun, except by special licenses
from the collector of the port, and naval officer of the same, where there
is one, for that purpose; nor at any time without a permit from the collector, and naval officer, if any, for such unlading or delivery: and if
any goods, wares or merchandise shall be unladen or delivered from any




47
such ship or vessel, contrary to the direction aforesaid, or any of them,
the master or person having the charge or command of such ship or
vessel, and every other person who shall knowingly be concerned, or
aiding therein, or in removing, storing, or otherwise securing the said
goods, wares or merchandise, shall forfeit and pay, each and severally,
the sum of four hundred dollars for each offence, and shall be disabled
from holding any office of trust or profit under the United States, for a
term not exceeding seven years; and it shall be the duty of the collector of the district, to advertise the names of -all such persons in a newspaper, printed in the state in which he resides, within twenty days after
each respective correction; and all goods, wares, or mlerchandise, so
unladen or delivered, shall become forfeited, and may be seized by any
of the officers of the customs; and where the value thereof, according to
the highest market price of the same, at the port or district where
landed, shall amount to four hundred dollars, the vessel, tackle, apyarel
and furniture shall be subject to like forfeiture and seizure."
In  the case of  United States vs. Brrig  cJalek Adhel
(2 Howard, 210), which was an appeal from a decree of the
Circuit Court of the United States, for the District of Maryland, sitting in admiralty, and confirming a decree of the
District Court, rendered on an information, tn rem, upon a
seizure, made for a supposed violation of the act of the 3d
of March, 1819, it was claimed that the innocence of the
owners could withdraw the ship from the penalty of conlfiscation under this act of Congress.  To this Mr. Justice
Story replied, in giving the opinion of the court:' The act makes no exception whatsoever, whether the aggression
be with, or without the cooperation of the owners. The vessel which
commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference
whatsoever to the character or conduct of the owner. The vessel or
boat (says the act of Congress) from which such piratical aggression, &c.,
shall have been first attempted or made, shall be condemned. Nor is
there anything new in a provision of this sort. It is not an uncommon
course in the admiralty, acting under the law of nations, to treat the
vessel in which, or by which, or by the master or crew thereof, a wrong
or offence has been done, as the offender, without any regard whatsoever
to the personal misconduct or responsibility of the owner thereof. And
this is done from the necessity of the case, as the only adequate means of
suppressing the offence or wrong, or insuring an indemnity to the injured party. The doctrine, also, is familiarly applied to cases of smuggling and other misconduct under our revenue laws; and has been applied to other kindred cases, such as cases arising on embargo and nonintercourse acts."
There is in the volume of Sprague's  Decisions, page
ahhseeca,55 of the Yaceit Wanderer, which was a libel of




48
information, claiming a forfeiture under the second section
of the Slave-Trade Act of 20th April, 1818.  The counsel
for the claimants interposed the objection that the owner
was innocent of the offence charged. To this Jtdge Sprague
replied:
The construction contended for, will not only violate the language,
but defeat the purpose of the Act. For an owner might send his vessel
on a lawful voyage to New Orleans, for example, and there his master
fit her out for the Slave Trade; nay, even in the home-port, the owner
has only to keep behind the curtain, while his master is fitting his vessel for the criminal enterprise, and make, at the proper time, such declarations and manifestations as may repel the presumption of complicity,
and the vessel will be liable to no forfeiture. But it is urged, that it is
unjust to deprive the owner of his property, when he has been guilty of
no criminal purpose. No doubt it may sometimes bear hard on innocent owners. But this hardship is imposed by the general policy of our
laws, when vessels are employed for criminal purposes.
The Legislature, to insure not only good faith, but the utmost vigilance on the part of the owners, says to them emphatically, you must,
on peril of losing your vessel, see to it that she shall not be made use
of as an instrument for violating the law. And if this is deemed necessary, merely for the protection of the revenue, for a much stronger
reason should it be enforced against vessels to prevent their being used
as instruments to carry on a trade, which not only in the eye of morality, but also in the eye of the law, is the most atrocious that man can be
engaged in. We must recollect that a traffic so denounced and so criminal, will assume every disguise, false pretence and deception, which
fraud and ingenuity can devise, and calls for the most stringent
measures for its prevention, one of which is to enlist the owner of the
vessel to prevent her being so employed in violation of the law, by
holding him responsible for such use to the extent of his ownership.
For these reasons, I do not think it necessary to go into,the question
which has been so much contested, whether Lamar had knowledge of
Martin's criminal intent.   *            * 
In this case Martin was in possession, with the consent of the owner,
and I am not called upon to decide what would have been the result,
if he had been a mere trespasser from the beginning.
When that case shall arise, and an owner shall leave his vessel so
exposed, that a wrong-doer can seize, fit and convert her to such an unlawful purpose, it will'be for the Court to consider, whether both the
language and the spirit of the law do not require her condemnation.
But that question is not now before me."
The closing remark of Mr. Justice Sprague may fairly
be taken as a clear indication that a condemnation would be
decreed if ever such question came legitimately before him.
The effect of innocency of the owner of a vessel, inculpated for violation of law, and proceeded against in, rem, has




49
very recently been before this court in a prize case, and your
Honor, in rendering an opinion, expounded with clearness
the true relation of owner and vessel, under such circumstances.  In that case, which was, the l5Vapoleon, the wellknown high commercial character, and moral worth of the
owner, were strongly pressed upon your Honor, but to no
avail.  The Court said:
" The question before the Court on this trial is as to the innocency
or guilt of the vessel, as if the transaction in which she was implicated
was one of personal volition on her part; and that inquiry may be resolved quite independently of the individual intentions or cognizance
of the parties who are made pecuniarily responsible for acts of the vessel or of the property, which incur or have imputed to them forfeitures,
because of such acts. It is, accordingly, not sufficient for the claimant,
in defence of this suit, to establish his own loyalty of character, and his
disapproval of the connection of the vessel with the enemy, or with the
illicit conduct alleged against her. The evidence on the first hearing
was amply satisfactory in that respect, without the corroboration of
subsequent proofs, which also show his unquestioned patriotism and
rectitude as a citizen and a merchant, and that his most earnest efforts
were exerted to prevent the prize from being in any way employed in
aid of the enemy. But, notwithstanding his individual integrity, the
vessel is responsible, in law, in rem for the malfeasance of the agent who
had the control of her, in violating the penal laws of navigation. The
most distinguished and unblemished reputation on the part of a shipowner will not protect his vessel from confiscation, when it is engaged,
though through untrustworthy agents, and without his knowledge and
against his prohibition, in illicit employments, in infractions of revenue
and fiscal laws, and prelminently in violating the laws of war. The
res culpcabilis has meted out to it the nmulct or confiscation legally applicable to the Agent acting voluntarily in violation of law. Ships and
cargoes of the largest values are constantly subject to forfeiture, without
regard to the intentions of their owners, for being the means of smuggling property of triflingo value into port, in evasion of restrictive laws
of trade; and in time of war, a neutral ship is subject to forfeiture, if
run into a blockaded port by her commander, independently of proof
of instructions by or actual intention on the part of the owner, to evade
the blockade, he having previous due notice of its existence and efficiency.    *      *       *      *      *      *      *      *
"Admitting, then, to the fullest extent the probity of the claimant in
all his personal transactions in respect to the vessel and her voyages,
and his loyalty and fair conduct, towards the laws and the rights of
his own government, so far as his personal intentions or authority were
concerned, the considerations set up and pressed in his behalf cannot
be admitted as constituting a legal defence to the suit. They may supply a forcible ground of appeal to the executive department of the Government, in respect to the ulterior disposition of the proceeds of the
prize, but the judiciary have no competency to control that matter."
The learned counsel says that it would be contrary to the There is a
4




50
aindlnter-  first principles of justice to forfeit a man's property for acsl
tice, to be in which he was not shown to have participated, when the
administered by the forfeiture is part of the punishment for what is made a percourt, in
cases of this sonal crime.  But lie certainly does not need to be told that
character.
in matters of high concern to the peace of a nation, its honor
and dignity and good faith, there is a legislative justice; and
that, when the principles of that justice have been clearly
enunciated in statute law, which affects the rights of friendly
nations, they have reason to demand such an administration
of its provisions as shall protect them  from the mischiefs
againlst which protection has been solemnly promised to the
full extent of the enacted law.  In the present case, this
legislative justice is undeniably founded upon the principle
that owners of vessels shall not, either designedly, or
passively, or blindly, suffer their property to be tampered
with by the agents of foreign belligerents, to the injury, the
annoyance, or even the calarmn, of nations with whom we are
at peace; and the comprehensive and searching provisions
of this law, which punish not only completed wrongful acts,
but attempts at wrongful acts, and conscious concernment in
wrongful acts, although they are never carried into perfect
execution as means of injury, evince the clear purpose of
Congress to protect, not only the actual and material interests, but even the public tranquillity and national sense of
security of friendly nations.  If this great policy works a
hardship in an individual case, that hardship is for the consideration of another department of the Government, and
it can afford the judiciary no reason for overturning the will
of Congress, or for declaring, by a captious construction, that
we have lived for eighty years under a law that kept the
word of promise to the ear, only to break it at last, to the
hope of the world at large.
This court   Again: the learned counsel for the claimant contends
has jurisdictiontoforfeit that this court has no jurisdiction to forfeit this vessel for
this vessel
for the of the offences described in this act, by a proceeding on its
fence set   r
tintel.    admiralty side in rem;  and by way of supporting this




51
proposition, he proceeds to the extremity of asserting that it
could be done, and must be done, if at all, under a common
law indictment, by passing a sentence of personal conviction,
and making the forfeiture a part of that sentence. That lie
really expected to convince an intelligent court of either
branch of this proposition, is scarcely to be presumed.
The cases already cited of the Palmyra, the AMalek Adhel,
the Little Charles, not to say hundreds of others, which
have proceeded under statutes which authorize forfeitures
of vessels for unlawful acts, which are also punishable in
those who commit thelmn, by fine and imprisonment, although the particular statute does not expressly provide an
admiralty jurisdiction for the particular forfeiture-will put
him upon the inquiry whether there is not a general provision of admiralty jurisdiction which reaches all such forfeitures, but which he has ignored.  He is doubtless familiar
with the ninth section of the Judiciary Act of 1789, which
vests in this court, as a Court of Admiralty, jurisdiction of
all civil causes, of admiralty jurisdiction, and of all seizures
under laws of impost, navigation, or trade, where the seizures
are made on navigable waters; he has read the case of the
Sarah (8 Wheaton, 391), which long ago pointed out that
this court has both a common law and an admiralty side,
that in cases of seizures made on navigable waters, it sits as
a Court of Admiralty to enforce forfeitures in ram, and that
the two jurisdictions, although vested in the same tribunal,
are as distinct from each other, as if they were vested in
different tribunals.  It would be somewhat difficult for him,
therefore, to show how this forfeiture is to be enforced on
the common law side of this court, unless, indeed, he could
make it appear that this vessel of fourteen hundred tons
was seized on dry land.
That an information against a vessel to en force a forfei
ture, unless the seizure is made on land, is a civil cause of
admiralty jurisdiction, triable without a jury and not a criminal proceeding, is rather conclusively settled by La Yen



geance (2 Dallas, 27), the Sarah (8 Wheaton, 691), the Abby
(1 Mason, 360), the Little Ann (Paine's Cir. Ct. Reps., 40),
and hosts of other cases.
It is wholly immaterial, therefore, what the English
neutrality statute does, or does not provide, in the way of a
special jurisdiction, to reach the forfeiture. Our jurisdiction is fixed by our Judiciary Act of 1789, and it is never
necessary for Congress in declaring the forfeiture of a vessel
to provide special jurisdiction; nor does the jurisdiction ever
fall to the common law side of this court, unless the seizure
is made on land, or on waters that are not navigable by vessels of ten or more tons.
Proposi-    In conclusion, therefore, of our argument on this branch
tions of law
contended of the case, we respectfully insist that the following proposifor by the
~:ent.   tions are fairly to be deduced fiom the legislation of 1818:
First.  If the court shall be satisfied that any person
whatsoever was knowingly concerned in fitting out the
Meteor, whether armed or unarmed, with the intent that
she should be employed in the service of the Chilean Government, to commit hostilities against Spain, or the subjects
of Spain, we are entitled to have the forfeiture decreed; and
the offence of being knowingly concerned is complete, if anything was put on board, or anything was done to the vessel
in furtherance of that intent.
Second. If the court shall be satisfied that any person
whatsoever was knowingly concerned in furnishing, or offering the Meteor for sale to the Chilean Government, with
the intent aforesaid, we are entitled to have the forfeiture
decreed; and such intent is complete if the vessel was
offered to be put under the control of the Chilean Government, or its agents, for the purpose aforesaid.
Third.  If the court shall be satisfied that any person
whatsoever was knowingly concerned in arming this vessel,
with the intent aforesaid, we are entitled to have the forfeiture decreed; and this offence of being knowingly concerned
in arming, is complete, if any warlike instruments, or stores,




were put on board, with the intent aforesaid, no matter
whether such arming was complete, or left incomplete.
We contend, farther, that the nanles, persons, offices, or
relations of any of the individuals, who may have done any
of these acts, are not necessary to be alleged and proved,
provided the court is satisfied that the unlawful acts were
clone, and that the names, persons, offices, or relations of
individuals, are not otherwise material than as they may
tend, with other facts, to show that unlawful acts were, or
were not done.
We now come, next in order, to the rules which, in ad- of awruli
miralty courts, control tile introduction of evidence in cases down by the
of this character, and which also must govern this court in Cort  cases,
apply to and
coming to determination as to the decree which shall be en- govern the
case at bar.
tered herein.  My learned friend professed, in his argument,
to be somewhat amused that, in my opening statement of
this case, I should have ventured to suggest to the court,
that the rules of evidence, laid down in recent slaver cases,
decided in the Supreme Court, and reported in the second
volume of Wallace, were to be taken as flrnishing   a rule
and measure, for the guidance of your Honor in disposing of
the case at bar. It may be that his profession of amusement
at my citation was sincere, but yet I have rarely seen the
learned counsel laboring, in an argument, under more embarrassment, and evince more intellectual awkwardness, than
when he was attempting to satisfy the court that the cases
of the Kate, Sarah, Weathergage, and Reindeer had no application to the pending trial. I think an impartial observer
would have found more amusement in beholding the effort
of my learned friend, to make a reply to my citation, than in
the citation itself. There is no substantial difference between us, as to what the Supreme Court said, and did in
those cases. I am quite willing to accept his explanation fas
a correct exposition of the rules of evidence expounded in
those decisions.  He says that there were " facts, in regard
to those various vessels, which tended to prejudice the own



54
ers as being engaged in the slave-trade —facts wllich were
not the least inconsistent, in any respect, with their being
engaged in the slave-trade-and facts, which formed in their
nature, a body of proof that they were so engaged, and yet
it might be, said of those facts, separately considered, that
either of them did not condemn, and that each was consistent
with proof of innocence, if that proof were forthcoming;"
and he added, that "upon such a state of facts, when the
circumstances of actual and material proof tend to produce
a conviction that the vessel is designed for an illegal voyage,
and, although the intent is in doubt, in such case, the court
will infer the guilty purpose fiom  omission, on the part of
the claimant, to do the things which are natural, and which
are proper on his part, to purge away the accusation."
Now, I repeat, I accept this as a fair statement, so far as
it goes, of the conclusions properly to be drawn fioml these
slave-trade cases; so, upon that point, so far as counsel
are concerned, your Honor will have no difficulty.  BPut he
suggests to the court certain reasons nwhy the doctrine of
these slaver cases should not be applied to the case at bar,
and those objections reduce themselves to the four following:
1st. The difference between the offence of being engaged
in the slave-trade, and in violation of the laws of neutrality.
2d. That the action of the Supreme Court is so on the
perilous edge of error, that it needs apology and explanation.
3d. Inconsistency with the doctrine previously laid down
by the same court, in the case of the United States v8. Goodiny (12 Wheaton, 471).
4th. The assertion that, in the present case, the claimants,
are respectable and responsible men, and in the slaver cases,
were not.
Let us examine these objections, in the order in which
I have stated them.  The suggestion of distinction, as matter
of law, or of legal deduction, between violation of the slavetrade act, and violation of the neutrality act, is well enough
in one sense, but it has no application in the point of view




55
suggested by the other side. The slave-trade, though declared to be piracy by the municipal laws of most nations,
and a crime against humanity, is not prohibited by general
international law, and, therefore, it has been solemnly adjudged that its interdiction cannot be enforced by the exercise of the ordinary right of visitation and search, which in
time of peace does not exist independently of special comnpact. As nmatter of pure law, therefore, there is no foundation for the suggestion that the application of rules of evidence in slave-trade cases, is to be more stringent than in
cases of violation of neutrality acts which are made to pre-.serve the peace of the world.
The second suggestion that the decision of the Supreme
Court in these slaver cases is error, or next to error, is
sufficiently answered by the reply that it is law, and as such
must be received by this court, and every other court, firom
end to end of the Republic.
The third objection, that there is something in the case
of Goofding in conflict with the deduction which we seek to
make from these slaver cases, is as wanting in substantial
basis as are the previous objections.  The case of Good7iny
was a criminal trial. IHe was indicted, in the Circuit Court
of Maryland, under the slave-trade act, and was on trial for
his life. The single question submitted to the Supreme
Court was whether, upon a capital trial, the burden of
proof did, or did not rest upon the United States throughout.
It is amazing that there ever could have been doubt upon
such' a question sufficient to carry it to the Supreme Court.
And we suspect that Mr. Justice Story, in giving the opinion of the court, had this in his mind when he expressed
anxiety lest questions so simple in their character, should
be too frequently brought before the court of last resort.
At any rate, the court very properly said that the general
rule of jurisprudence under our system, and under the English system, permitted a party, on trial for his life, to stand
mute, and compel the Government to make out a case of




56
conviction beyond all reasonable doubt, but such a decision,
in such a case, can have no application to the trial of the
forfeiture of a ship in an Admiralty Court.
The fourth objection of the learned counsel really needs
but a word of reply.  It is part and parcel of the theory
which he has so persistently endeavored to interweave into
this trial, which is, that his clients are arraigned personally
before the bar of this court.  He insists upon arguing to
your Honor that it is the Messrs. Forbes who are on trial,
and not the steamship Meteor. To every suggestion which
inculpates the vessel, he replies that it stigmatizes the owners, and he exploits a theory, as new as it is vicious, that.
rules of evidence ill judicial tribunals, are to be varied,
moulded, and changed according to the assumed respectability of the persons who happen to be defendants. Assume, for a moment, the truth of all that mylearned friend
claims about the mercantile standing of the Messrs. Forbes,
Mir. Low, and iMr. Jerome, and the other owners of the
Meteor; assume, too, that the claimants and owners of the
vessels, inculpated in the Supreme Court for violation of the
slave-trade acts, were the opposite of his clients in commercial
standing and social respectability. Of what avail is all that
in face of the fact that his clients do not offer to your Honor
one word of evidence in vindication of this vessel? The old
proverb, that silence is golden, may be well enoulgh in certain relations of life, but it does not control in an Admiralty
Court in a proceeding in  emn, where the evidence on the
part of the prosecution is sufficient to throw strong suspicion
upon the thing which has been arrested.
oThe urfden   It is not pretended that the rules of evidence in admiralsuits for forftit~ure in  ty and maritime causes relieve him who alleges a fact, from
Admiralty the necessity of proving it.  But there is this distinction between trials in admiralty and at common law, that the burden of proof, as it is called, more readily shifts in the former
from the plaintiff to the defendant, than it does in the latter.
This rule is perfectly familiar to this court; the practice




57
under it is well defined; and there is no need of entering
upon either an exposition of the rule or the practice.  The
underlying theory is that the claimant, or the owner of a
vessel, or of merchandise seized, has, in his own hand, the
mneans to satisfy the court that the property is innocent, provided it be really so, and that it is no hardship to require
him to make the explanation, whenever the Government, by
its proofs, throws upon the inculpated property strong suspicions, or, what is sometimes called, probable cause to believe that the forfeiture has been incurred.  This rule of
presumption is as old as this court. Your Honor has had
occasion to announce it again and again.
It is doing more than necessity requires, to cite any
adjudged cases which announce this elementary doctrine in
admiralty trials. I therefore select at random, but a few of
the numerous cases, scattered up and down the records of the
Fiederal courts. In the case of the Brig Short Stcle (1 Gallison, 104), which was a libel of information against a brig
for violation of the 3d section of the act of January 9, 1808,
which constituted one of the Embargo Laws of the United
States, the defence was, that the brig was compelled to
proceed to a foreign port in consequence of a hostile capture
by a British armed cutter.  The United States contended
that the circumstances of the case were such as to outweigh
all the positive testimony in the cause, and to prove in opposition, that the "' Short Sta ple, " was carried into a foreign
port, not by force, but with her consent.  The case turnled
on the question,-Was the capture real, or was it made in
consequence of some secret arrangement between the captor
and captured.  Mr. Justice Story, in giving the opinion of
the court, laid down the rule, in respect to burden of proof,
and presumptions of law, in cases of this character. He said:
" The story here told is indeed a very extraordinary one, and yet is
supported by positive direct testimony. It is, certainly, the duty of the
Court, not lightly to suspect the truth of statements, clothed with the
solemn sanctions of an oath, and supported by numerous concurring
witnesses. But testimony, however positive, must in its nature, be li



58
able to control by strong presumptive circumstances, and must be
weighed with care, when it comes loaded with the temptations of private interest, and the impressions of personal penalties. It is a melancholy consideration for the court, that in the discharge of public duty,
it finds itself often obliged to resist the influence of human declarations,
and to rely upon the concurrence of probable circumstances.
In the present case, the claimant admits, that the brig proceeded to
a foreign part and there disposed of her cargo. It thereJfre becomes ineuznbent on him to make out a justfication in point of fact, as well as
laiw. The. onus probandi rests on him, and a forfeiture mnust be pronounced, unless he brings the defence clear of any reasonable doubt.
Now, there are many circumstances in this case, which have a tendency
to excite strong suspicions and doubts."
The same case came up, on appeal, before the Supreme
Court of the United  States, and  is reported  in  the  9th
Cranch, p. 55. The Chief Justice, in delivering the opinion
of the court, reversed the decree of the court below, in respect to the dutv of the master and crew of a captured vessel
to rescue her, but in respect to the presumptions of law to
be applied to cases of this character, the Court said:
" The interest which coasting vessels had in fictitious or concerted
captures, undoubtedly subjects all captures to a rigid scrutiny, and exposes them to much suspicion. The case of the claimant ought to be
completely made out. No excullatory testimony, the existence of wchichl
is to be supposed fromn the nature of the transaction, ought to be omitted.
The absence of such testimony, if not fully accounted for, would make
an impression extremely unfavorable to the claim.
In the case of the Brig Srugygkc (9 Cranch, 71), which
was an information in the District Court of iassaechusetts, for
violation of the non-intercourse act of Congress of June 28,
1809, Mr. Justice Livingston, in announcing the opin on of
the Supreme Court, said:
" Although mere suspicion, not resting upon strong circumstances
unexplained, should not be permitted to outweigh positive testimony
in giving effect to a penal statute; yet it cannot be regarded as an oppressive rule to require of a party who has violated it, to make out the
vis major under which he shelters himself, so as to leave no reasonable
doubt of his innocence; and if, in the course of such vindication, he shall
pass in silence, or leave unexplained, circumstances which militcate strongly
acgainst the integrity of the transaction, he cannot complain if the court
shall lay hold of those circumstances as reasons for adjudging him IN
DELICTO.'"
In the case of the Robert Edwards (6 Wheaton, 187),
which was a libel for alleged forfeiture under the 46th see



59
tion of the Revenue Law of 1T99, the Supreme Court reaffirmed the doctrines in respect to burden of proof and presumptions of guilt, which had been laid down six years previously.  The Court said:
"It will be sufficient to advert to a few of the prominent facts, to
ascertain the real character of this transaction. The Court has been
reminded that it ought not, without the most satisfactory and positive
proof, in a case so highly penal, to decide that a violation of law has
been committed. Although such proof may generally be desirable, we
are not to shut our eyes on circumstances which sometimes carry with
them a conviction which the most positive testimony will sometimes
fail to produce. And if such circumstances cannot well consist with the
innocence of the party, and arise out of her own conduct, and remain
unexplained, she cannot complain if she be the victim of them."
In the case of [Ten H]ogsheads of l]Rum (1 Gallison, 187),
which was an information founded upon the 5th section of
the Act of March 1, 1809, for an alleged importation into
the United States of ten hogsheads of rum of the growth and
manufacture of some colony or dependency of Great Britain,
Mr. Justice Story says:
" It has been supposed, that the onus probandi is not thrown upon
the claimant in proceedings in rem except in cases within the purview
of the 71st section of the collection act of 2d March, 1799, ch. 123.
And I incline to the opinion that the provision alluded to is but an
extension of the rules of the common law. Be this as it may, wherever
the United States make out a case prima facie, or by probable evidence,
the presumption arising from it will prevail, unless the claimant completely relieve the case from difficulty. In the present case, I think the
United States have prima facie maintained the allegations of the information.  The burthen of proof of the contrary, therefore, rests on the
claimant. He, and he only, knows the origin of the goods. He can trace
his title backwards, and give the history of the manufacture, or at least of
his own purchase. If he does not attempt it, but relies on the mere absence
of conclusive, irrefragable proof, admitting of no possible doubt, he claims a
shelter for defence, which the laws of the country have not heretofore been)
supposed to acknowledge. I observe that the owner, in this case professes
to be a Spanish subject at the Havanna. He is, of course, in a situation peculiarly fitted to enable him to show that the rum was of domestic and not of foreign origin.  The neglect so to do affords a presumption, that the case does not admit of a satisfactory explanation."
Another case upon this subject is that of the Kate (2
Wallace, 350), in which the Supreme Court distinctly affirms
the proposition of Mr. Justice Betts, in the court below, that,
" when the evidence on the part of the Government creates




60
strong suspions  or well-grounded suspicons that the vessel
seized, as being employed in the slave-trade, was fitted out
or titting out for that purpose, the decisions in this court
have been uniform  and distinct, that such evidence must
produce her conviction and condemnation, unless rebutted by
clear awnd.satisfactory proofs on the part of the claimants,.showing her voyacge to be a lawful one."
In the Sarah (2 Wallace, 366) the principles of the preceding case (the Kate) are re-declared, and a vessel,-bound
to Africa, under circumstances, indivicdually not very strong,
butt collectively of weight, raising a presumption which there
was no effort to overcome by explanation, —was condemned.
In the Weathergage (2 Wallace, 375), and in the Reindeer (2 Wallace, 383), there  is reannouncement by the
Supreme Court, of the rules of evidence which govern in subjects of this character. In the latter case, the Court says:
" Suits of this description necessarily give rise to a wide range of investigation, for the reason, that the purpose of the voyage is directly involved in the issue. Experience shows that positive proof in such cases
is not generally to be expected, and for that reason among others, the
law allows a resort to circumstances, as the means of ascertaining the
truth. Circumstances altogether inconclusive, if separately considered,
may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.
Applying that rule to the present case, we have no hesitation in coming
to the conclusion, that the finding in the Court below was correct."
My opponent, when addressing the Court upon this branch
of the case, dwelt with much fervor, upon what he deemed
to be the outrage of requiring his clients to condescend to
come into court, and make explanation of suspicious circuln
stances.  Ile permitted us to be informed of the theory of
morals, the ideas of personal hollor, and chivalrous conduct,
which, in his own office, control in such matters.  He called
attention to what he characterized as an old French. proverb,
which, when translated into English, runs: " I-e who excuses himself, accuses himself;" and intimated that this
proverb was for him  the measure which determined when
it was proper for his client to be called upon to make ex



61
planation of damaging circumstances. Now, such a rule
may be well enough in relations between my friend and his
clients, but I respectfully submit that this court does not administer justice upon any such notion. The rule which prevails here is, that when the Government makes out a case
of strong suspicion against a ship, or any other piece of
property, he who claims it, as owner, must come into court
and make all needed explanation, and purge away the suspicion, or else his property will be condelned. The learned
counsel is as well aware of this rule as anybody else. One
who has been employed exclusively, either in criminal trials,
or common law cases, might well enough be misled as to the
presumptions of law in an Adlniralty Court, but not so the
counsel for the claimants. He has reason to know that he
who defends a forfeiture case in this tribunal, must prepare
for trial upon the theory that the burden of proof will shift
oftentimes upon very slight testimony, and that this will
devolve upon him the affirmative of the question. A lawyer who conducts business here upon any other theory, will
find the property of his clients slipping from under them
and him, with fearful rapidity. But with this knowledge,
and with a clear perception of the risk to be run, my learned
friend declines to produce any testimony. What necessity
drives him to adopt such a dangerous line of tactics? He
could not hope either to dupe this court, or to induce it to
change the settled rules of admiralty proceedings. Why,
then, did he not vouchsafe' explanation? Why did he not
produce evidence which would even place this case within
the theories of law for which he has so strenuously contended? Why did he not clear up the numberless mysteries, as
he calls them, which hang around the Meteor? Mr. Forbes
was in court; the captain of the Meteor was in court; every
officer and man on board were within his reach, and yet
the defence is dumb. The only explanation of this silence
is, that speech, on their part, would be confession.
The Government insists that the presumptions of law are Legal.con



seqece'Clof against the claimants of the Meteor, for another reason,
to tproduce growing out of their conduct during the trial. Mr. Robert
books and
papers, inl B. Forbes having testified, in effect that books were kept in
compliance
with due no-Boston by Mlessrs. Forbes & Co., fully disclosing the affairs
tice served
upon them. of the Mfeteor, and all that had been done respecting her, a
notice was duly served on their counsel "to produce all
books of account of R. B. Forbes, or J. M. Forbes, or J. M.
Forbes & Co., having entries in relation to the ownership
and expenses chargeable against the steamship Meteor, and
also all letters written or received by R. B. Forbes, or J.
M. Forbes, or J. M. Forbes & Co., or any other persons
having interest in said steamship in relation to her building,
equipment, chartering, sale, or disposal," which notice was
marked Exhibit M.
To this notice, answer was made that they "6 had no books
to produce; " and we are not without positive decision of
the Supreme Court of the United States as to what the effect
of such refusal is.
In the case of Clfton vs. t.4e United States (4 Howard,
242), which was a libel of information founded upon a seizure of seventy-one cases cloths, imported into this country,
and alleged to have been forfeited by fraudulent undervaluation in the invoice, the counsel for the Government, in the
progress of the trial, and in pursuance of a notice given
some months previously, called upon the claimants for the
production of their ledger containing entries of each of the
several invoices of the goods thus imported; also, for the
production of their cash book, and for the entries therein relating to the said importation, to each of which calls, the
counsel were answered that the claimants had no such books
in court. Thereupon the court below instructed the jury
that " to withhold testimony which was in the power of a
party to produce, in order to rebut a charge against him,
where it was not supplied by equivalent testimony, might be
as fatal as positive testimonly in support or conf rmation of
the charge; that if the claimants had withheld proof which




63
his accounts and transactions with these parties afforded, it
might be presumed that, if produced, they would have operated Hlcfavorahly to his ca6'e."  This instruction, given to the
jury, was excepted to by the claimants, and the point carried to the court of last resort, where Mr. Justice Nelson, in
givinlg the opinion of the court, said:
" The instructions had a direct reference to, and are to be construed
as intended to bear upon, the matters of defence, probable cause having
been shown; and upon the nature and species of the evidence relied on
by the claimant in support of it; and in this aspect of the case, at least,
without now referring to any other, we think they were not only quite
pertinent to the question in hand, but founded upon the well-established
rules and principles of evidence. The prosecution involved in its result,
not only the forfeiture of a considerable amount of property, but also
the character of the claimant, both as a merchant and an individual.
He was charged with a deliberate and systematic violation of the revenue laws of the country, by means of frauds and injuries.
Under these circumstances, the claimant was called upon by the
strongest considerations, personal and legal, if innocent, to bring to the
support of his defence the very best evidence that was in his possession, or under his control. This evidence was certainly within his reach,
and probably in his counting room, namely, the proof of the actual cost
of the goods at the place of exportation. He not only neglected to furnish it, and contented himself with the weaker evidence, but even refused to furnish it on the call of the Government; leaving, therefore,
the obvious presumption to be turned against him, that the highest and
best evidence going to the reality and truth of the transaction would
not be favorable to the defence."
Upon this peremptory decision of the Supreme Court,
we are authorized to ask your Honor to presume that the
production of the books thus called for by us, and shown to
be in the possession of the claimants, would hlave furnished
evidence unfavorable to the defence.
The claimants' counsel saw fit to preface his comments ofmatho
upon the evidence produced on the part of the Government selifor the
claimants
by strictures somewhat severe, upon the manner in which ththswer
ot called as
the late lamented District-Attorney had seen fit to marshal'witnceslsed
upon the
his testimony.  He made profert of distress at the absence merits, and
so endorsed
of this, or the failure on our part to call the other man.  A by the United  States.
person named Byron, seems greatly to have worried the
claimants by his absence.  It never seems to have occurred
to them that his testimony might have been merely cumulative, or that they could have called him into court. And,




64
strangely enough, it is made topic of complaint by Mr.
Evarts that we do not interrogate his clients, the Messrs.
Forbes, and did not introduce to your Honor, Mr. Cary, and
the captain of the Meteor. The Court has not forgotten the
experience which we had with the Messrs. Forbes in the
early part of the trial of the case, nor the reluctance with
which they, and Mr. Low, were brought to give direct and
truthful answers to the very proper questions which I propounded. Your Honor cannot have forgotten how Mr. John
M. Forbes, in desp~air of being able to elude or escape me,
at last, in a tone pitiable indeed, replied in substance, " if
my counsel, ilr. Evctrts, will permit, I will, tell the truth
about the ownership of the Iifeteor." It did not require great
prescience on the part of the late District-Attorney, to determine then, that, in future, it would be better for Mr. Evarts
rather than for ourselves, to examine Mr. Forbes, if truth
was to be readily elicited, or facts which could be of any
service to this court in coming to a proper conclusion in
respect to this case. True enough, the 1Messrs. Forbes, and
Mr. Cary, were here upon summons issued on the part of the
United States; but they were called to give evidence upon
the preliminary question of ownership, and not upon the
merits of the cause. More than this, your Honor remembers
that, when Mr. John M. Forbes was called to the stand by
us, and somet discussion ensued in respect to his testimony,
my friend on the other side distinctly warned the Court, and
the counsel for the prosecution, that he should, at a proper
time, object to the Government calling the claimants to the
stand upon the merits. Now, with such a proclamation in
advance, and with our experience in regard to the reticence
of the Messrs. Forbes, there was no wish, or purpose, on our
part to again produce thenl, and so be made, directly or indirectly, responsible for any statement they might see fit to
make, or refuse to make.
Inquirywhthe But the captious and unreal character of this objection
toeunclfor will be better appreciated when the Court recalls the fact
the clain-        te




65
that the Government did place upon the stand Mlr. Jerome, ants did not
offer his
clients to the
one of the owners of the ship, and offered hinm to the cross- examination
of the court,
examination of the other side. Did they venture to put to and the fgovtheySpu tof    anernmenth
him one single pertinent interrogatory in respect to the sale of n~ hyhis
clients did
the ship, or to her fitting out with intent to cruise in behalf of not insist
upon makChile? The Government proved by Mr. Jerome that lie, as log apparent
one of the owners, solicited the Chilean Minister to make a of the propurchase of the Meteor; and the claimants' counsel did not geteor, if it
really was
dare-yes, that is the word —to examine the witness as to honet.
the circumstances under which she obtained her clearance,
and endeavored to depart from this port. Your Honor will
remember that Mr. Low, another one of the owners, who,
called by us on the preliminary question of ownership, went
upon the stand beset with a desire, as a certain class of witnesses always are, to talk about everything but the topic
suggested by the questions, stated that he had received letters from Mr. Forbes in respect to the disposition of the Meteor, and had made replies. Why did not the claimants'
counsel call and examine Mr. Low, who evidently knew
under what conditions this vessel made ready for sea in January last?  Why was not Mr. Low offered to our crossexamination? The captain of the Meteor, too, where is he?
What were his instructions from Mr. Forbes, if he had any?
WVhy were they not put in proof? It is in evidence here
that the vessel cleared for Panama. That is proven by the
manifest, which recites the fact.  What was the captain to
do with the vessel when he arrived at that port, if it ever
was expected that she would reach there? To whom was
the vessel consigned? How does it happen that she was to
go around the Cape without cargo? On the preliminary issue, Mr. Dickinson did, as I have said before, direct that
certain persons, in the interest of the ship, be put upon the
stand on the question of ownership, but when, on the witnesses manifesting reluctance  and unwillingness, I was
obliged to press them  with questions somewhat leading in
their nature, the counsel upon the other side made captious




66
objections, and insisted that I should not cross-examine my
own witness. All this talk about our failure to put Mr.
Forbes, or Mr. Cary, or Mr. Low, upon the stand, is, I submit, mere pretence and subterfuge.  It is not sincere, and is
not uttered in the presence of your Honor with a view to
the ascertainment of legal truth. It is done for prejudice;
nothing but prejudice.
But above and beyond allthis, why didlmen of the age,
character, and intelligence of the claimants, not insist and
demand that they be allowed by their counsel to go upon
the witness stand, and clear away the suspicions which
gather around the Meteor? What power is it which has
arrested, and arraigned their ship? Is it not their own
Government   Where is their loyalty?  Do they venture
to suggest that the late District-Attorney was inspired by
any other motive than the public good? Is it to be intirlated that tile Secretary of State was moved by personal ill-will
toward Messrs. Forbes, to publicly approve the condeuct of
Mir. Dickinson in detaining the vessel?  Clearly not. The
prosecution had no other aim  or end but the public weal,
and the public peace.  And yet, the claimants stand dumb,
and "' open not their mouths."  Would innocent men fail to
speak out? Would they tolerate, for the millionth part of
a second, a legal adviser who ventured to restrain them fromn
acting the part of brave, true men, by stepping forward for
the protection of their own character?
Objections   My opponent devoted a great portion of the last day
that a portion oftle of his argument to complaint, and arraignment of the charevidence of
tlhepr3secu- acter of our evidence.  IIe characterized it as hearsay,
tion is inad- 
missible, be- secondary, trivial, and imnmaterial.  Now, every lawyer
cause hear-                                          every l1
say andd. knows that, whether evidence be secondary or primary,
trivial or important, immaterial or material, depends on the
nature of the issue, and the allegations to be proved.  The
inquiry here is:
First. Were any persons knowingly concerned in furnishling or fitting out the Meteor?




67
Second. With what intent were they so concerned?
Nobody denies —the counsel himself does not deny-that
Wright, McNichol, J. F. Nichols, and Conklin were concerned in furnishing, or fitting out the Meteor.  That is
clear.  This starting point is conceded.  It is also equally
clear that these perscns were either conspirators with, or
agents of Mackenna and Rogers. These two propositions are
undeniable.  They lay on the face of the whole transaction.
If, then, these persons were conspirators, the court being
satisfied of the connection and association of these individuals (Wrigllt, McNichols, J. F. Nichols, Conklin, Rogers,
Mackenna) in the enterprise, every act and declaration of
each mnember of the conspiracy, in pursuance of the original
plan, and with reference to the common object, is, in contemplation of law, the act and declaration of all, and is
therefore original evidence against each of them.  This doctrine is made indubitable by the case of American F1Eur
(Coonjpany vs. United States (2 Peters 358-365).  If these
persons are agents of Mliackenna and Rogers, a kindred rule
governs, as is apparent by case of United Satctes vs. Gooding
(12 Wheaton 468).
In the case of the Americcan Fur Company vs. The
United States (2 Peters 358), which was an information of
sundry goods seized as forfeited under the provisions of two
acts of Congress for regulating trade and intercourse with
the Indian tribes, Mr. Justice Washington, in giving the
opinion of the Supreme Court, laid down the federal doctrine
in respect to declarations  in very broad terms, as follows (p.
364):
" The objection to the evidence of Davis is so fully answered and
repelled by this court in the case of the United States vs. Gooding (12
W., 468), that it seems necessary only to refer to that decision. That
was a criminal prosecution against the owner of a vessel, under the SlaveTrade act of Congress, and an objection was taken by his counsel to
evidence of the acts and declarations of the master of the vessel, who
was proved to have been appointed to that office by the defendant with
an authority to make the fitments for the vessel.
" The principle asserted in the decision of that point and applied to




68
the case was, that whatever the agent does or says, in reference to the business in which he is at the time employed, and within the scope of his authority is done or said by the principal, and may be proved as well in a criminal as a civil case, in like manner as if the evidence applied pervonally to
the principal.
"The opinion of the court in the present case is not less correct,
whether Davis is considered by the jury as having acted in conjunction
with Wallace, or strictly as his agent. For we hold the law to be, that
where two or more persons are associated together for the same illegal purpose, any act or declaration of one of the parties in reference to the common
object, and forming a part of the res gestca, may be given in evidence against
the others; and this we understand, upon a fair interpretation of the
opinion before us, to be the principle which was communicated to the
jury. "
I make no mention, now, of the admitted rule in Admiralty Courts, that when the claimant, by his silence, compels
the Government to resort to circumstantial evidence to prove
the offence, then objections of the character of those made
by counsel, and just commented on, are not favored by the
Judge.  It is by the connection of all the circumstances together, that items of proof are to be made material, and admissible, and not by taking up singly each piece of evidence,
and looking at it in detail.  But, apart front all this, we
contend that our evidence is legal evidence, competent and
sufficient to condemn this vessel.  It comes fully up to the
standard and measure of the slaver cases in the second voluile of Wallace's Reports.
the insinua-    The Government witnesses are repeatedly characterized
tion that the
witnesses of by the claimant's counsel as " intermeddleli."     They certhe government, inthis tainly are, or were, associates, friends, and agents of the
case, are intermeddlers. Chilean  Government, and very  far from   being  willing
witnesses for the United States.  McNichols, Conklin, and
Wright were employed by the Chilean Consul at this port.
He inspired, promoted, and directed their acts, which have,
under compulsion, been related here.  We did but use the
material which the Chilean Government used.  But was
Jerome an " intermeddler," when he made an appointment
with Asta Buruaga, the Chilean Minister, to go on board the.Meteor, to see if the latter would purchase her?  W as Cary
an "' intermeddler," when he offered, for money, to place the




69
3MNeteor at the disposition of the Consul of Chile, and pursued
Wright to complete the negotiation for selling her to that
Government  Was the captain of the Meteor an "' intermqneddler " when he paid his visits to the house of Mackenna,
who is the Chilean head-centre in Ne-w York?
But the real character of the witnesses for the Governinent can be best seen by a careful review of the mass of testimony taken during the trial.
And here it is important for your Honor to note that No Oflot'~                      by claimants
there has been no attempt to shake the testimony for the to impeach,     character of
United States, by witnesses called by the claimants. There of tshe wit-e
has been, on the other side, no attempt to impeach the char- government.
acter of our witnesses; no effort to prove other declarations
by them, inconsistent with those made before your Honor;
no endeavor to show hostility on their part toward the owners of the Meteor; in a word, no undertaking by testimony
of the claimants to make our witnesses appear untruthful.
The Government witnesses passed through the ordeal of the
bitter cross-examination, untouched and unharmed.  They,
therefore, stand before this Court, unimpeached, as they are
nnimpeachable.  All their statements, in the utter absence
of anything to the contrary, must, in a legal sense, be taken
to be true.
What has been proved?
i. That the Meteor was built by Robert B3. Forbes, " and  Facts
proved iin
a few friends, to cruise after British pirates, and she would the case.
hlave been taken over by the United States, had not Fort
Fisher fallen just as it did." She was, therefore, constructed
for war purposes. She was designed " to cruise, or commit
hostilities."  The letter of Forbes to Schmidt, makes any
further comment on this point unnecessary.  The description of her, given by her builder, is redolent of war and battle, and negatives the idea that any peaceful purposes entered into her organization.  Forbes says: She was designed
to carry one Aeavy pivot amnidships on gun-leck, or two 10inch or other gruns at the same point, namely, just before the




70
mainmast; forward of this are two _ports (two on each side),
where 8 or 9-inch Dahlgrens would have been mounted, had
she been taken by the United States Navy Department, acnd
abreast o' the engine hatch, aft, there are twio ports on each
side, where she could have mounted short 32-s, or 24-pound
howitzers, and on upper deck there are beds for two 30-pound
Parrotts, mzaking one _pivot, 11-inch or two 10-inch; four
broadside, 8 or 9-inch; four 32 or 24-pound howitzers on
gun deck; two light chase guns on upper deck.  She has two
61 by 36-inch cylinders; four tubular boilers; propeller of
brass, 13 feet chain, and 23feet pitch.  The motive _power,
boilers, &cc., were impoorted from  Scotland at a very large
cost, and are first quality.
2. Robert B. and John MIN. Forbes appear in the register
as sole owners, but other parties, including Jerome and Low,
are also interested. Their interest is of the same character as
the Messrs. Forbes, and on a sale of the vessel, the proceeds
would be distributed, among those interested, pro rata. (See
pp. 67, 80, 88).
3. That the vessel belonged to no regular line of trade, was
in no business, and was for sale, Forbes says, in his letter to
Schlnidt, under date of Sept. 12, 1865: " T/he 2lleteor is for
sale, but I have not offered her, because she needs cleaning
up and painting after her r late experiences carrying troops
and cargoes. She can be bought for much less than cost,
and much less than she can be built for to-day.  I cannot
name a price till I consult the other owners.  I agm open to
an ofer."
Her other owners urged an immediate sale.  Mr. A. A.
Low, one of the owners, when interrogated on this point,
answered as follows:
Q. You state that you have had conferences with Messrs. Forbes
about the disposition of the ship; how many have you had? A. Mr.
Forbes addressed letters to us occasionally, but I think principally with
reference to sending the vessel abroad, to which we dissented; we
thought the ship should be sold at home, the purpose having failed for
which she was built —the Government not requiring her; we insisted that
she should be sold at home.




71
Q. You consider that you had a right to insist upon the disposition
of the ship? A. When we were consulted as to the disposition of the
vessel, we expressed ourselves in that way.
Q. How many times have you been consulted? A. Within a year,
two or three times, by letter.
Q. How recently? A. Not within several months, that I am aware
of.
Q. How many months? A. Not since 1st of January, I think.
Q. You were consulte,] about the 1st of January? A. No; I think
earlier; in the autumn, or possiomy a late as the 1st of January; I
think not as late as the 1st of January.
Mr. William H. Aspinwall, another owner, confirms the
previous testimony that the vessel was only suitable for war
purposes, and, that those interested desired to get rid of her
as speedily as possible. The following is his evidence upon
this point:
Q. Have you had any conversation about employment or sale? A.
I have advised her sale.
Q. At what time? A. I think in the month of October.
Q. Since that, have you advised her sale? A. Yes, sir.
Q. At what time? A. I should think, within three or four months.
Q. In Janury? A. I cannot remember when.
Q. December? A. I cannot remember; I never had it much on my
mind.
Q. Why did you advise her sale? A. Simply because the object for
which the ship had been built was passed, and did not wish to have it
on my mind at all.
Q. You believed it was for the interest of the owners, or for those
interested, to sell? A. I did not pretend to judge about it; I thought
that the gentlemen had trouble enough about it, and had better end
the matter.
Q. And preferred to get your money back, to have it rest there?
A. Yes, sir.
The testimony of iMr. Jerome, another one of the owners,
is, like the others, conclusive upon the point that the owners
desired to get rid of the " Meteor."  In his re-direct examination (p. 320) he stated distinctly that " the ship was for
sale."
4. A state of war has existed between Spain and Chile,
since September 25, 1865, and from that date, until the
present time, the ITnited States have been at peace with
both nations; that from the date of the declaration of war
between these countries, until February 12, 1866, Stephen




72
Rogers was Consul for Chile in New York. (See Certificate
of Secretary Seward, p. 106.)
Benjamin Vicuna Mackenna was special agent for Chile
in the United States, appointed prior to October 1, 1865, arrived in New York November 19, 1865, and occupied that
position at the time of the seizure of the Meteor.  (See his
testimnony, p. 110, also testimony of Ramsay, and Ex. I., pp.
309-310.)
5. The owners of the Meteor were concerned in offering
and affording the Meteor to the Chilian Government.
Mr. Jerome solicited the Chilian Minister to go with him
to Jersey City to look at the vessel, " to see if he would buy
her," or, to induce him  to recommend her to his Government, in case "' the occasion might turn up," in which that
Government needed such a war vessel. In his direct examination, Mi'. Jerome, when first called to the stand, answered
in these words:
Q. Have you ever been on board the Meteor? A. Yes, sir.
Q. When were you on board of her last? A. I never Nas on board
but once.
Q. When was that? A. Some four or five months ago.
Q. In whose company were you at that time? A. Mr. Asta Buruaga's, the Chilean Minister; I think no one else.
Q. Was Mr. R. B. Forbes along at that time? A. I think not.
Q. What is your best impression? A. My best impression is, that
he was not; I am quite sure he was not.
Q. Where was the vessel lying at that time? A. At Jersey City.
Q. Did you and the Chilean Minister go together to visit her? A.
No, I think not; I think I met him there.
Q. By agreement? A. Yes.
Q. What was the agreement you made with him by which you met
him there? A. I asked him to look at the ship.
Q. For what purpose? A. To see if he would buy her.
Q. And did he look at the ship? A. He did.
Q. Did you and he examine the ship together on that occasion?
A. We went through her partially, not much.
Mr. Jerome, having testified, that he never was on board
the vessel but once, and that "some four or five months
ago," was then asked what month it was that he and Asta
Buruaga, the Chilian Minister, visited the Meteor together,
and he could not fix the month.  He thought it was before




73
the arrival of the news of the declaration of war, but yet
could not tell when that news of the declaration was first
heard by him.  As near as he could fix the time, it was
sornewhere in the year 1865, which made it apparent that
he was very likely to be mistaken in supposing that hle invited the Chilean Minister to go on board the Meteor prior
to the declaration of war. On his re-direct examination, iMr.
Jerome varied his previous statement somewhat, in respect
to the Chilean Minister.  In order that I mlay do no injustice to the witness, I read in full this subsequent statement.
Q. I understand you, on your direct examination, that he wanted to
buy the ship?
[Mr. Evarts objects that the witness did not use that language.]
Q. Did I understand you as stating, on your direct examination,
that the Chilean Minister desired to purchase the ship? A. No, sir.
Q. What did you say in regard to that matter? A. I said I asked
him to go and look at her.
[The stenographer, Mr. A. F. Warburton, was called upon to read
the witness his testimony.]
Q. Do you desire to change your testimony in that respect, or is it
correct? A. Not exactly; I am recorded there as saying that I asked
him there to see if he would buy her.
Q. In what particular is your testimony incorrect? A. I could not
expect him to buy her, because he had no power to buy her, as I understood; the ship was for sale, and I wanted him to look at her; perhaps
he might recommend her.
Q. You say you did not expect him to buy her? A. No, sir.
Q. Because he had not the authority to buy her? A. No.
Q. Who did you suppose had the authority to buy her? A. I did
not suppose any one had, at that time; 1 thought the occasion might turn
Up.
Q. How did you know he had not authority to buy her? A. I did
not know.
Q. What did you mean, when you said you did not suppose he had
authority to buy her.?  A. I simply did not suppose he had.
Q. Who did you suppose had? A. I did not suppose any one had.
Q. Why, then, did you ask the Chilean Minister to look at the ship?
A. Well, I thought the occasion might turn up that he might want to buy
her.
It is clear, upon examination of the whole testimony of
Mr. Jerome, that, as a part owner of the Meteor, he was willing, and made effort, to place this war vessel under the control of the Chilean Government.  IIe was knowingly concerned in furnishing the " Meteor " to that Government.
It is in evidence that Mr. William H. Cary has also been




74
concerned in offering, or affording the Meteor, to Chile. Mr.
Cary, it will be remembered, was the agent of the owners,
and had firom them authority to dispose of her. Wright testifies as follows, in respect to his interview with Cary:
Q. Do you recollect anything more of that interview with Mr. Cary?
A. No, sir.
Q. Was anything said by him at the interview with you, to the effect, or in substance, that he had already had negotiations for the sale of
the Meteor to the Chilean Government?
Objected to by claimant's counsel.
The Court-Ask what conversation he had? A. As I have said, at
that time he said he had already been in treaty with them, and they had
no money.
It will be remembered that this reply of Cary to Wright
was made when the latter, in behalf of Rogers, the Chilean
Consul, applied to the former to know the terms upon which
he could procure the Meteor, and the former had in turn
called on Wright, at his office.  Wright then told Cary that
it was the Chilean Government for whom he wished to purchase the vessel. In response to that information came the
reply from Cary that he had already been in treaty with the
Chilean Government, and its agents had no money. This
was about the middle of December, 1865, and fixes the fact
that prior to that the agent of the owners of the Meteor had,
as well as Jerome, been concerned in placing her under the
control of the Chilean Government. (See p. 117).
Wright having informed Cary that, in his opinion, the
agents of the Chilean Government in New York could make
an arrangement for money, the latter called again on Wright
at his office about December 20, 1865,' to ask if there had
been anything done " further, in respect to the Meteor.
MecNichols also testifies (pp. 167-168) that Rogers, in
November, 1865, told him that "the special agent or the
Chilean Minister had been neeyotiating about the Meteor,
and the delay was for want of funds."  Rogers also said that
"the Meteor was offered to the special agent or Chilean
}Minister for a little less than two hundred thousand dollars
in gold."




Thus we have it from Jerome, Cary, and the Chilean
Consul, that the owners of the Meteor did, after war was
declared, endeavor to put that vessel under the control of
Chile.
Having established these five important points, it will be
convenient now to take up the witnesses one by one.
Ronald.McNichols testifies that he knows Rogers and
Wright; that he does not know M{ackenna (p. 163); that he
first saw Rogers in the latter part of October, or early inl
November, 1865; that he called on Rogers at his home, in
company with Conklin; that Rogers told him, at this interview, that he wanted " wooden propellers for war purposes
for the Chilean Government," and heavy ordnance for the
navy (p. 164); that Rogers wished to know if witness had
facilities for the procurement of such vessels, and on being
told that was in witness's line, authorized him to procure
names of such vessels, and furnish him with estimates of
their cost, and also estimates for ordnance; that, in pursu.ance of this employment, witness ascertained the names of a
number of vessels, called on him a second time, and gave
him their names and descriptions in writing (p. 165); that
witness and Rogers then had conversation, in reference to
mode of procuring clearance from  Custom  House; that
Rogers told witness he would submit his estimates to the
Chilean Minister, or agent, and see witness again; that
about three weeks later, after having had repeated interviews, witness furnished Rogers with the name of the Meteor, and an estimate of her cost and armament; that this was
done at Rogers' home in presence of Conklin; that Rogers
remarked he did not think the brokers whom witness had
named as having offered the Meteor had control of that vessel; that he, Rogers, understood arrangements were made
about the Meteor, and that she was out of the market; that
Rogers said the Chilean.Minister, or special agent, had negotiated for the Meteor, and the only delay was want of
funds; that the Meteor had been negotiated for on more ad



76
vantageous terms than those offered by witness; that she
had been offered to the special agent or minister for $200,000
yold, but that if a capitalist could be found to advance the
n yoney for her purchase, it would be advantageous, and he
asked witness to ascertain with certainty whether Wright
had control of the vessel; and that if a capitalist could be
found to advance the money to Mr. Forbes, and clear her
friom this port, the Chilean agent would pay a very handsome price; that witness saw Rogers on the following night,
assured him Wright had entire control of sale of the Meteor,
and had conversation with him about payment for the vessel
by drafts on the Chilean Government; that Rogers said he
could not tell exactly the style of the drafts until he heard from
the Chilean Minister at Washington; that when Rogers told
witness lie did not think Wright had control of the Meteor,
he called at Wright's office to ascertain; that Wright showed
witness a telegram or letter from Forbes, -which showed
Wright had authority to sell the vessel. At this interview,
witness was in onlle office at Wright's place; and Wright
said Mr. Cary was in another of Wright's offices; that
Wright came from the outer office, where Cary was, and
wanted to know our principals. "I told him the Chilean
Government."  Wright went into the other room, and, as
witness understood, told Cary the vessel was wanted for
Chile. In order that Wright might understand the character of the bonds proposed to be given by the Chilean Government, witness, by appointment with Royers, called with
WVright on Rogers; they had conversation about the difference in exchanges, and about difficulty in obtaining clearance fbr the vessel; in the conversation with Wright, Rogers
said Mackenna (the confidential agent) did not want to advance money on any vessel until she was outside of Sandy
Hook, but afterward Rogers told witness Mackenna would
run one-third the risk of getting the vessel out, so that the
capitalist would only run two-thirds risk; witness and Rogers had many interviews with him about clearing the ves



77
sel; that Rogers told witness Captain Catesby Jones had
been employed by Mackenna as inspector of vessels, " andc
helping himn earry on the business." That on Saturday, prior
to the seizure of the Meteor, Rogers called on witness at his
office, and told him the " matter of the Meteor was settled;
he understood the Meteor was to clear next week for Panama; that the purehase of the ilieteor was all settled." Rogers
said she was going to clear for Panama. It was an understood thing what purpose she was to go for. At this interview, Rogers said Mlackenna was making use of the information Wright and witness had given, and had employed other
parties to accomplish his object; that on the following Monday morning, Rogers called at witness's office, and told him
the Meteor would clear that day. (See pp. 164, 180).
Julius Conklinr testifies (pp. 220 to 235), that lie was at
Rogers' house on the Saturday preceding the seizure of the
Meteor, and narrates the conversation between Rogers and
McNichol thus: Rogers remarked to McNichol that the Meteor would probably sail on the first of the next week, perhaps on Monday, and " that all arranygeents had been conmpleted for her sale to the Chilean Government."  Rogers
added that he believed these arrangements had been completed by Mackenna. (See p. 222).
CUharles 1. Wright testifies (p. 214), that he is a ship
broker; that about December 1st, 1865, Byron called on
him with McNichol and Conklin, and wanted to purchase
three or four steamers; that witness gave him a list of vessels, among which was the Meteor; that the next day he
called on witness again with MeNichols and Conklin; that
they said the Meteor would suit, and desired witness to ascertain the price at which she could be bought; that witness thereupon communicated with Forbes in Boston,
through witness' brother, and learned the Meteor could
hle bought for $350,000; that subsequently witness wrote
R. B. Forbes (see Ex. p. 115), and the next day received
reply from J. IM. Forbes & Co. (Exhibit HI), that anything




78
Messrs. Cary & Co. engaged would be duly ratified (p. 115);
that at, or about the time of witness' letter to Forbes, Cary
called on witness at his office, stated he had understood witness was communicating with Forbes about the purchase of
the Meteor; that he, Cary, had as much to do with her as
Forbes; Wright further says that, at this interview, witness
told Cary he would communicate with him again, as soon as
he got anything definite; that a day or two afterwards, Cary
called again on witness, and Conklin, McNichol, and Byron
were in one room and Cary in another; that, at this time,
Cary wanted to know who were witness' principals; that
witness told Cary lie thought the ship was wanted for Chile,
but to niake certain, went into the rooim where Conklin,
McNichol, and Byron were, inquired of them, and being told
they represented the Chilean Government, so reported to
Cary; that Cary then remarked,  "If these are your parties,
you can do nothing, as they have no money;" that witness
told Cary, he thought they had, and would see Cary again;
that at this interview Cary said, "he had already been rin
treaty with the Chilecan Governgment, and it had no money"
(see p. 117); that Cary after that cclled again (p. 116); that,
prior to this interview, witness called on, and had conversation with Rogers, and he informed witness that Conklin,
McNichols, and Byron were looking about for vessels for
him (p. 135); that witness inferred, from what Rogers said
to him, that these men were acting under authority from
Consul Rogers, and witness continued negotiations with
them under that impression; that this was about the middle
of December, 1865 ()p. 117); that at this interview, Rogers
told witness the special agent of Chile wished to purchase
vessels; that he wanted armed vessels; that they talked
about the Meteor, and witness suggested it would be difficult to get an armed vessel out of the port; that the Meteor
was built for war purposes, and it would be difficult to get
her out; that Rogers told witness the Meteor would suit
him, and he wanted her for the Chilean Government; that




79
on the 26th December, 1865, witness, still acting for Chilean
agents, addressed Exhibit L, to Messrs. Cary & Co. (see p.
119); that subsequently witness had conversation with
Rogers about Mackenna; that on Thursday or Friday, prior
to the seizure of the vessel, witness saw Rogers, and said he
understood the Chilean Government had  bought the iMeteor;
that Rogers replied he, personally, " had nothing to do with
the purchase of the Meteor," but that he believed Mackenna
had (see p. 118).
J. F. Vichols testifies that he knows Forbes, Wright,
Rogers, Mackenna, Byron, Conklin, McNichol, and Captain
Kemble, of the Meteor; that he first called on Rogers with
one Bates, to ascertain if a Chilean letter-of-marque was genuine; that Rogers said it was; that Bates left the same
with Rogers, with instruction to give it to witness if he
raised stock for a privateer; that Rogers said a special agent
of Chile would soon be here, and then he would know what
the Government intended to do; that at one other interview, Rogers told him parties representing Chile (thinks it
was the MCinister) had been on board the Meteor with reference to her purchase, liked her much, and Rogers wanted
witness' opinion of her (p. 243); that Rogers afterward told
witness of the arrival of special agent Mackenna; that after
interviews with Rogers, witness examined the Meteor at
Wright's request, nmade an estimate of armament she would
require, and gave it to Conklin, or Mc3Neichols; that subsequently witness saw Rogers with Wright, and, at his request,
furnished him with estimate of what it would cost to get the
Meteor out to some foreign port; that witness had many
interviews with Rogers; that in these the difficulty of the
Chilean Government in paying cash for vessels was discussed, and drafts frequently spoken of; that witness called
on Mackenna with a card of introduction from Rogers; told
him he would like employment in the Chilean navy, or to
get command of some Chilean vessel, fitting out in New
York; Mackenna said he had heard of witness from Rogers;




80
that he would bear witness in mind if opportunity offered.
Witness told Mackenna he understood Catesby Jones had
been appointed inspector of vessels for the Chilean Government; that Mackenna replied " he had inspected some " (p.
249); that, at this interview, witness mentioned the names
of several vessels to Mackenna, and Mackenna objected to
them on the ground that they were too old, &c. (p. 250);
that on the Friday preceding the seizure of the Meteor, witness was on board; saw stores being put on; was told by a
stevedore employed about the vessel, she was bound for
Chile; that there was no cargo on board, only stores and
provisions, and rifles and ammunition; that at this time he
saw R. B. Forbes on board; had conversation with him;
heard him give directions to place rifles in the racks; that
as witness and Forbes were leaving the ship, Forbes remarked she was very buoyant, considering she had 750 tons
of coal and six months' provisions; that he accompanied
Forbes to Niew York, and on the ferry boat remarked to
him, that he, witness, thought the Meteor was bound for
Chile; that Forbes said she will clear for Panama; that
witness told Forbes in a loud voice he expected to have had
command of her, and take her to Chile, and Forbes told
witness he ought not to talk so loud about such matters in so
public a place (pp. 256-257); that on the same afternoon,
witness, in company with Wright, saw Rogers; said to him
he thought the Meteor "was off for Chile;" that Rogers
remarked:'M Xaclenna had done the businzess throutgh other brookers,
and thought he h/ad a good bargain in? the ileteor because
they had got 750 tons of coal in the contracet" (p. 258); that
Rogers said the ship was " to go to Panama, and there be
turned over and change command, I think he said to Williams " (p. 260); that witness called to see Mackenna on
Monday preceding her seizure, and told him he saw the
3Meteor was off for Chile; that he had expected to command
her, but saw no Union officer had any chance with him;




81
that Mackenna said: 1" Wait, wait, there may be an opportunity for you yet" (p. 262); that he knows Captain KeMnble of the Meteor; that, before the seizure of the ship, he had
conversation with Kemble, about her destination; that Kemble said: " if Chilian agents bought her he would take her
out and deliver her to other parties; to some fighting Captain " (p. 263).
Daniel 1. Hunter testified, that he Nwas employed by
Mackenna as translator; that he lived in the house with
him; that he knows the Chilean Minister; Rogers the Consul, Captain Kemble of the Meteor, and a Captain Wilson of
the Chilean Navy; that he had seen all these persons at
Mackenna's house in New York; that he had heard conversations between Maekenna, and Captain Wilson, about fitting
out privateers against Spain; could not say when, or how
many times, lie had heard the subject discussed; that ie had
heard the subject of the purchase of the lieteor discuzssed by
3iackenna and Wilson (p. 153)  that witness had been on.
board the Meteor accompanied by Chileans several times;
that he there met Kemble, Captain of the Meteor (p. 156);
that he saw Captain TKemble at Mackenna's house twice before the seizure of the Meteor; that Kemble saw MIackenna;
that Kemble remained there an hour or so, each time (p.
158); cannot recollect any of the conversation that was had
by Mackenna and Kemble on those occasions (p. 159); that
after Mackenna's arrival in New York he saw Asta Buruaga
at his house several times; that he was present at interviews
between Mlackenna and Asta Buruaga and did not hear collversation about privateers (p. 160); that he has seen Rogers
at Mackenna's house on a great many occasions, and has
heard the subject of privateers discussed "in a general way"
(p. 161); that he has heard conversations between them about
the Meteor; that he became acquainted with Mackenna in
Chile, before war was declared.
George R7a. rcansay testified that he made the contract
with Mackenna for Torpedo boats, Exhibit L (p. 310); that
6




tlc (certificate annexed to the contract of Rogers was furrislie(l to witness by Rogers.
*~hiCes R. Ford testified that on the 18th day of January
lie rc('cived in his warehouses from Cary & Co. two Parrott,(,r"is. withl appurtenances, and ammunition firom  the Meteor
4 p. 11 ).  This was more than one month after Wright had
ilntfiiled Rogers an armed vessel could not clear (see Wright's
testi-llony), and only three days before the Meteor applied at
tile ('-stom House for her clearance.
l'?llianm? Jarvis testified that he was Marshal's officer;
tlhat lie took possession of the Meteor on the 23d January,. s;6;, at about one o'clock, P. LM.; that at the time he went,,I lu loard steam was up, and [Mr. R. 1. Forbes was on board;
that MAr. Forbes said he had expected to accompany the
\;'csi  to the  Narrows; that Forbes had  a  travelling
lag. with  lim; that at this time the Captain was not
OIL b[,ard, but that lie served a notice of seizure on the Mate
1. i 08).
/,omas Hf. Sease testified lhe was appointed sllipkeeper
1! tlhe Marshal; went on board the day of seizure; that, on
thle -2l day of February, lie saw on board the M}eteor 5i, c.-e: otf shot for cannon, which Captain Keinble asked his
I e01riassion to land, and, when it was refused, asked witness
ta, say nothing about his request (p. 104).
/i,#I>,is J. Kirk testified that lie was an Inspector of Cust,m:,,and, on the day preceding the seizure of the [Meteor,.Ie, wenllt on board by direction of the  Surveyor of the
I,,orft ~ that he saw the first mate Betts, who told him " hei
(d-!   ASpped for one year, but expected to be in Xew  York;1, //foee mnonths; " that he examined the cargo book, and;,nlllll the vessel had no merchandise on board, only coal and,tolurc; that a portion of the stores were marked " reserved.tr:,,lc" (pp. 112-113).
Tllhe manifest produced to the collector of customs by
(Caq.'ta.in Kemble on the 22d January 1866, on application for.lclarance, describes only " fuel and stores."  Its correctness




83
was sworn to by Kemble on that day. The voyage was described as to Panama.
The Court cannot fail to see how inexorably this testimony brings thle Meteor within the circle of the denuticiations of the legislation of 1818. It discloses two high contracting parties, " concerned" in furnishing or fitting out that
vessel; the owners or agents of the ship, on the one side,
and the Chilean GoNvernment, its 3Minister, confidential agent,
consul, or unofficial agents, on the other side. The Consul
cannot and wvill not deny, that he held out Byron, McNichol,
and Conklin to be his agents, acting on behalf of Chile.
Wright, by his evidence, leaves no doubt on that point. And
if the Court is satisfied that all parties were so "' concerned "
in furnishing or fitting out the MIeteor, it can and will have
no difficulty in findcling the necessary intent.
It needs only to m1ake such a review of the evidence as I
have just given, to see how entirely unjust was the effort of
the counsel for the clainants, to characterize the Government
witnesses as a parcel of irresponsible' intermeddcllers."
Was Jeromre,-a part owner in the vessel to the extent of
thirty thousand dollars,-an 1 "intermeddler," when he mlade
an agreement with the Chilean Alinister to go on board the
vessel, some four or five months ago, with the view of inducing him, or his Government, to purchase her? Is there any
possible legal question as to the admissibility of his testimony? Is there any suggestion that it is hearsay, secondary,
or immaterial'   Four or five months ago carries us back to
November, 1865, and war, between Spain and Chile, was
declared September 25, 1865. What was the motive of Mr.
Jerome in making an appointment with the Chilean Minister
to go to Jersey City and inspect the ship?  I pray your
Honor to reflect upon this, when you shall come to consider
whether any of the owners of the Meteor were knowingly
concerned in affording her to the Chlilean Government, withl
knowledge, or intent, that she was to be used in the hostilities betw6en that Governmlent and Spain. I take it that




84
if we had no other testimony of the relation of the owners,
to the voyage which this vessel was about entering upon,
when she was seized, this evidence of Jerome alone would
-be sufficient to create the stronpq sus8pieiom recognized by the
Supreme Court in the slaver cases.
Tihe Court.  My impression, although I have taken no
notes of the testimony, as I rely upon the report of the shorthand writer, is, that Mr. Jerome said that he had no conversation with the Chilean Minister at that time, about purchasing the vessel.
M2r. (J/ioate.  And he stated at that time, also, that the
Chilean Minister had no authority to buy the vessel..ir. Webster.  I will refer to the shorthand writer's report.  I do not think it possible that I am in error.  The
testimony of Mir. Jerome is to be found on page 319.  The
stenographer's report reads as follows:
Q. Have you ever been on board the Meteor? A. Yes, sir.
Q. When were you on board of her last? A. I never was on board
but once.
Q. When was that? A. Some four or five months ago.
Q. In whose company were you at that time? A. Mr. Asta Buruaga's, the Chilean Minister; I -think no one else.
Q. Was Mr. R. B. Forbes along at that time? A. I think not.
Q. What is your best impression? A. My best impression is that
he was not; I am quite sure he was not.
Q. Where was the vessel lying at that time? A. At Jersey City.
Q. Did you and the Chilean minister go together to visit her? A.
No, I think not; I think I met him there.
Q. By agreement? A. Yes.
Q. What was the agreement you made with him by which you met
him there? A. I asked him to look at the ship.
Q. For what purpose? A. T9o see if he would buy her.
Q. And did he look at the ship? A. He did.
Q. Did you and he examine the ship together on that occasion? A.
We went through her partially, not much.
Aftr. Choate.  He further stated that he supposed the
Chilean Minister himself had no authority then to complete
the negotiation.  We find that there was no negotiation between him and the Chilean Minister for purchase and sale.
tiXr. Webster.  We need not dispute here about that.
The point upon which I am  now addressing the Court is,




that l4Mr. Jerome desired to sell the lMeteor to the Chilean
Government, and offered her to its control for money.
IYIh. Choate.  He wished to sell her.
Xr. WVebster.  To the Chilean Government; or else, why
did he solicit the Chilean Minister to  go on  board her.
He admits that he made an agreement.  He is then asked,
in his direct examination, " for what purpose," and lie replied, " to see if he would buy her."  It is true, as I have
already stated, that in the subsequent examination of Mr.
Jerome, he seemed to desire to modify his previous state-;ment, and opportunity was given to him.  But his explanation did not vary or affect the fact that lie desired to place
the Ml3eteor at the disposal of Chile. In order that there
may be no misunderstanding upon this point, let me re-read
the explanatiol of 3Mr. Jerome, taken fionm  the shorthand
writer's report, page 319. H' ere it is:
Q. Do you desire to change your testimony in that respect, or is it
correct? A. Not exactly; I am recorded there as saying that I asked
him there to see if he would buy her.
Q. In what particular is your testimony incorrect? A. I could not
expect him to buy her, because he had no power to buy her, as I understood; the ship was for sale, and I wanted him to look at her; perhaps
he might recommend her.
Q. You say you did not expect him to buy her? A. No, sir.
Q. Because he had not the authority to buy her? A. No.
Q. Who did you suppose had the authority to buy her? A. I did
not suppose any one had at that time; I thought the occasion might
turn up.
Q. How did you know he had not authority to buy her? A. I did
not know.
Q. What did you mean when you said you did not suppose he had
authority to buy her? A. I simply did not suppose he had.
Q. Who did you suppose had? A. I did not suppose any one had.
Q. Why, then, did you ask the Chilean Minister to look at the ship?
A. Well, I thought the occasion might turn up that he might want to
buy her.
Now, if the Court please, this agreement, appointment,
interview, and visit to the Meteor, in which Mr. Jerome and
the Chilean Minister were concerned, were the inception and
beginning of an affair which culminated in an illegal transaction.
The Couzrt.  I had been under the impression that




86
Jeromie  characterized  that interview  as only a casual
olle.
JIT. Chocate.  Jerome, like Low, testified that lie lhad
given over all control of the sale of tlhe ship to M1r. Forbes,
and did inot claim to have power to sell lher.
iJ]r. -Wcebster. But we see that the testinmony fixes beyond dispute, that the meeting was not casual, or accidental,
but a well-defined and clearly intended agreement, and
whllether Jerome had, or had not, the power to complete the
transfer, he, at least, tells the Court when the negotiation for
furnishing and fitting out this vessel, in the interest of Chile
against Spain, really began.  If any faith can be put in hIumlan testimony, Jerome solicited the Chilean 2Minister to inspect the Mleteor, to see if, at some time, his Government
woulld not buy hler.  Forbes said, in his letter of September,
1865, that the Meteor was for sale, but' I cannot name a
price until I consult the other owners. I am  open to an
offer."  At, or about that tile, Jerome makes an appointment with the Chilean Minister, in respect to this vessel,
which had no regular oecupation, and which was up for
" Cowes and a market."
3But I began my allusion to the testimony of Jerome,
chiefly to repel the stggestion of the other side, that the
Government  had introduced  no  witnesses but "intermeddlers."
Again; your Honor will remember tlat when Cary came
to Wrilght's office, and demanded to knlow who were his
principals, and WA-right replied, the Chilearn Government;
Cary then said, tflat lie had already been in treaty for affordincg to  that Government the  Meteor, and  it had  no
m oney.
iTIr. Chocate.  Ilis language was that he had made an
offer. "Treaty," is the wlord of counsel.
fir TWeebste)r. Well, let us refer to the shor hand writer's
report again, to settle this point. I read from  page 117, of
Wright's Direct Examination:




87
Q. Do you recollect anything more of that interview with MIr.
Cary? A. No, sir.
Q. Was anything said by him at the interview with you to the ett'e.t.
or in substance, that he had already had negotiations for the sale of the
Meteor to the Chilean Government? [Objected to by claimant's clllsel.]
Tle Court.  Ask what conversation he had. A. As I have saiil. at
that time he said he had already been in treaty with them, and tlcey al,-i
no money.
Therefore the Court will perceive that " treaty " is ln,,t
the word of counsel but is the word of the witness in relyto a question put by the Court.
Mr. Choate.  Wright said, " as I have said befo;,re.
And what lie had said before was, that he had an appli(.aitiori
of that kind before, and they had no money.
Xi%. Webster.  That is not the language of the re(,.(l]d.
and, besides, it is clear that }1r. Cary could not have g'le,
far in these endeavors to sell thle Mleteor to the Chlillanl:
Government, without coming to what, in such business. iV
properly characterized as a negotiation or treaty.
Now, put these things together; and see what we  ]a-tve.
Forbes states, in September, 1865, that the vessel is for o;le.
Jerome, in September, 1865, solicited the Chilean MIinlister.
to go to Jersey City and examine her.  Cary, in Dceilberl.
1865, admitted that, previous to that time, he had been, ina
actual treaty, or negotiation, to place her at the clisposal If
the Chilean Government.  I submit to your Honor ftllt.
upon the testimony of Cary alone, there is evidence of suelh1
a palpable violation of the neutrality act, as subjects this i alil,
to forfeiture.  Her owners confess that they have offerled tP,
furnish this formidable war-vessel to one belligerent, -r,, lct.
circumstanees which preclude the possibility that they  ioii,II 
have been ignorant of the use to which that belligerelt illtended to put her.  When Wright informed Cary tilit it.
was the Chilean Government for whom  lhe was actil-';is
agent, did Cary suggest the unlawfulness of such a negi:;tiation  2 No, nothin  of the kindcl! The only point of lifficulty hie suggested, was the want of cash funds.  Yiolatit
of law did not seem to enter into his thought, or compreelci



88
sion.  3More than  that, Cary subsequently returned  to
Wright's office to see if arrangements had been completed by
the Chilean agents for raising the necessary funds.
Again; your Honor will remember that Wright, in one
of his earliest interviews with Rogers, in respect to the
Meteor, expressed to the latter, doubt as to whether Chilean
agents could get the Meteor out of this port. Wright knew
that the Meteor was a war-vessel, and he knew she was anl
armed vessel, because he had seen two Parrott gulls on board.
He knew (which the learned counsel for the claimants affects
not to know) of the restraints which the act of 1818 places
upon warlike vessels, and especially upon vessels actually
armed. Bring that piece of testimony side by side with
the other fact, that three days before the Meteor applied
for her clearance  these two  guns were taken off and
stored in a warehouse near by.  Is not this incident of
itself sufficient to make strong suspicion of the illegality of
the voyage? If it be that the Meteor was bound for China,
as has been vaguely suggested by counsel, then it is clear
that she was bound for a locality where her guns would be
wanted, if gulns are ever needed in the merchant service.
Again, if the Meteor was going on a voyage of pure commercial adventure, and to find a market to sell herself; it
seems very clear that she would have taken on board all the
apparel and furniture which really belonged to her. But the
truth and fact are that, the illegal voyage having been determined on, these guns were taken off, in order to remove objects so prominent that the Government would not fail to
fasten suspicion thereon. And here the Court will observe
that we are dealing, not witlT  " intermeddlers," but with the
recognized agents of the vessel.
Once more, Hunter, the translator and  secretary of
Mackenna, the confidential agent in New  York, testified
that Kelnble, the captain of the Meteor, was in the habit of
visiting Mackenna's headquarters before the seizure was
made. Is there any explanation of such visits offered by the




89
claimants? Captain Kemble has been here in court every
day of the trial, sitting near the learned counsel, accessible
to him, and yet they do not venture to put him upon the
witness-stand, to give the Court any proper reason for this
intercourse by an American sea-captain with the confidential
agent of a foreign Government, and this confidential agent
proved, by the evidence in this case, to have been guilty of
the atrocious crime of organizing and setting on foot, within
the jurisdiction of the United States, a fleet of gunboats, under a contract with the provider of these formidable instrulinents, to blow up with torpedoes, public armed vessels, of
the Spanish Navy, and all on board. C(an it be said that
this incident of the repeated visits of the captain of the
Meteor, to the house of the confidential agent of Chile, in
this city, is of no consequence, when taken with the other
proved fact, that the same captain told Nichols,-a witness,
unimpeached and unimpeachable,-that if the Meteor was
disposed of to Chile, he (Kenmble) should take her out, and
deliver her over to a fighting captain? Are there any " intermeddlers "' in this branch of the case? In a word, up to
this point have we not been dealing exclusively with the
owners or recognized agents of the Meteor?
The  conversation of Captain INichols with  Captain
R. B. Forbes is, under the circumstances, something inore
than a mere casual affair. The Court will remember that
Captain Nichols testified that he said to Forbes on the
ferryboat that he saw the Meteor was off for Chile, and that
Forbes made no reply, but cautioned him not to speak so
loud about such a imatter in so public a place. This incident becomes, of course, important or unimportant, by reason of its association with other facts, and, taking the evidence in this case as a body, no one can safely say that it
does not aid in coming to a correct conclusion as to the voyage on which the Meteor was then about to enter. Thus
much for the owners of the vessel, and her agents.
When we, in turn, come to look at the acts of the officials




90
of the Chilean Government, we find a state of things which
irresistibly inmpels to the conclusion that this vessel has been'
placed within the denunciations of the third section of the
Act of 1818. The Court will remember that, on Friday before the seizure of the Meteor, IRogers said that she was to
go to Panalmaa, there to be turned over, and change hands.
IRemlember this statemlent from l Rogers does not come fromn
an " internleddler," but from the recognized official representative of the Government of Chile, in this port,-an
officer charged with special functions and duties, and permitted by our Government to have privileges in the United
States,-privileges which are always faithfully recognized in
this court.  Rogers stated that, although  he had nothing to
do with the final consummation, he believed Mackenlna had
done the business, and that he thought the arrangement a
good one, because it included seven hundred anld fifty tolls
of coal. Now, will somebody tell me, if the Chilean Government be not a party to the furnishing and fitting out the
2Meteor, with seven h-undred and fifty tons of coal, an article
now recognized as contraband of war, how did it happen that
on Friday, the Chilean consual knew all about it, and about the
vessel, even to her day of sailing? Remnember, I repeat, this is
not a statement of Byron, or MeNiichol, or Conklin, or any of
the nmen whomn my learned friend stigmatizes as " intermeddlers," but of a man accredited by the Chilean Government
to lthis country as consul.  On Satulrday, the next day,
Rogers called on MelNichol, and told him, in substance, that
the procurement of the Meteor was settled upon; that shle
was ogoingo to clear for Panama. And on Monday mrorning,
Rogers called again, and said the Mleteor would clear that
day, and it was the very clay she did attempt to clealr, and
on the next day she was seized by a mandate of this court.
As I have said before, there is no attempt on the part of the
claimants to impeach these witnesses; no attempt to show
they are not men of character; no effort to satisfy youre
Honor that they are not, in every respect, as worthy of be



91
lief as Messrs. Forbes, or Mr. Low, or:Mr. Jerome.  Our
witnesses have been subjected to a cross examination, as
severe and adroit as witnesses ever etndured.  Their history,
business, place of residence, everything concerning their interior life, has been gone into at lengtll.  How did they
bear the ordeal?  Was there one incident, from  ceoiinning
to end, which tended, in your Honor's judgment, to impair
confidence in these witnesses?
I watched with great interest, during the three days of
the argument of my friend in behalf of the claimants,
to see if lie would venture to present to your Honor any
theory, as to what kind of a voyage the Meteor was entering upon when arrested.  For the first two days of the
argument, lie kept clear of any such explanation.  lIle
gave that branch of the subject a very wi(le berth.  HIe, to
be sure, expounded, with great unction, certain theories of
law, but failed utterly to put his case il a condition to get
the benefit of his theories, except in the last day of his argumnent, when he spent considerable time in insisting that the
MIessrs. Forbes had a right to sell the Meteor to Chile.  It
is not readily to be perceived what necessity there was for
any such line of argument, if the fact be that the Meteor
was on a collmmercial voyage to China, or elsewhere, and'
had no possible relation to the Chilean Government, or to
the Chilean service.  The tMessrs. Forbes, he claimed, in all
their arrangements with Chile, in respect to the Meteor, had
donle nothing but what they had a perfect righlt to do. Here
again, I respectfully submit, we have, in the confession of
tile learned counsel, a very important piece of evidence,
which does not COme fiomn an "' intermeddler."'
My friend endeavored to create much smoke and confusion out of the fact that Conklin,  Wright, and Rogers
had conversation about funds with which to pay for thle
lMeteor.  The explanation of this is very simple.  Rogers
told Wright that the confidential agent had not arrived, but
that he was expected soon, and would have, or would be




92
able to make arrangenments for funds. In the mean time,
says Rogers, Chile needs armed vessels, and if some one can
be found who will advance money upon Chilean drafts on
the Government at Santiago, the exit of vessels will be very
mnuch facilitated. That was what these conspirators in behalf of Chile were doing when they applied to Messrs. Sackett, Belcher & Co. to advance the money. This is a very
common transaction, and such an one as our own Minister,
for example, may very likely have had occasion, at some
time, to make in London, or elsewhere, and it is clear, upon
the evidence, that the Chilean agents were willing to pay a
very large boinus to any one who thought enough of Chilean
securities, drawn by the Minister in this country, to advance
money upon them.
The excellent deportment and bearing of the Governmnent witnesses upon the stand cannot have escaped the attention of the Court. They were careful. and cautious in all
their statements, and evidently had an honest purpose to
keep within the bounds of strict truth. Ijn fact, Wright was
so reserved, and so apparently careful not to say any more
than was necessary against the Meteor, that he might well
enough have created the impression in the court room, that
he was more favorable to the Messrs. Forbes, and more in
their interest than in the interest of the United States.
The last point made by the counsel on the other side,
in his very able and instructive argumlent-instructive, I
aml free to say, both to us who are opposed, as it doubtless
was to those who sympathized with the views lie elaborated
— and. one which he urged upon your Honor quite at length,
and with much fervor, was that his clients represented in
this case the freedom of commerce. We do not take that
view. It occurred to me, while the counsel was addressing your Honor so eloquently on this point, that somewhat such a claim  and such an argument was without
doubt used by the claimants in the trial of the Alexandra,
and in Parliament by the friends of Messrs. Laird, to vindi



93
cate their action. Upon our theory of the case, if fMessrs.
Forbes are vindicators in this matter of the freedom of commerce, then the Messrs. Laird of Liverpool occupied that
position. The latter undertook to sell to Confederate agents
unarmed vessels. That fact, and the failure of the English
Government to stop the business, roused for two years in
the United States an amount of denunciation, of criticism of
the Queen, her government, her law, officers, and the jurisprudence of England, such as, I venture to say, has never, in
the history of nations, been meted out by one nation to an.
other, with whom it professed relations of amity. Did any
one suggest, during those two years, in the Utnited States,
that the Messrs. Laird represented the freedom of commerce?
We thought the only freedow they represented, when they
fitted out these cruisers, was the freedom to sink unarmed
merchantmen and whalers to the bottomless depths, and to
indulge the pitiable, contemlptible purpose, for brave men,
of destroying the results of the hard-earned industry of the
toiling fishermen of New Bedford. That is the "' freedom of
commerce " which the Messrs. Laird represented in selling
the Alabama, and others represented in affording the Tallahassee to Confederate agents in Liverpool. If our theory of
the case be correct, the Messrs. Forbes occupy to the Chilean
Government the same attitude in the sale of the Meteor, that
the Messrs. Laird occupied to the Confederates in the sale of
the armed rovers of the sea. No, if your Honor please, there
is no freedom of commerce about it! There is not an honest
shipowner, or an honest mercantile firm in this city, or in
Boston, engaged in legitimate business, who has any desire
that Messrs. Forbes should furnish to, or fit out this ship for
Chile, to be used as a privateer against Spain.  On the
contrary, they wish the Government to repress, if need be
with a strong hand, every effort, no matter from whence it
comes, of persons in the United States, who, having a ship
which cannot be used in lawful commerce, seek to use it
against the interest of neutrality.




94
This case, with all its far-reaching relations, international
and municipal, is now committed to the determination of
tile Court. If I had failed to remember that I was addressing a magistrate who, by long years of judicial labor, had
become practised ill the examination of oral or written testimony, and whose instinctive perception of what is admissible
or inadmissible, pertinent or impertinent, material or immaterial, made the exposition of counsel thereon quite nnnecessary, I might have dwelt upon the evidence more at length.
But what would be proper under other circumstances, or before a jury, would be improper here.  I, therefore, now
withdraw myself firom the cause, on submitting but this final
tllougllt.
The highllest and holiest duties, whicll cain be imposed
upon a goverlment, are the preservation of its own existence, and thereby, the protection of the life, liberty, property, and happiness of its people. The clischarge of these high
functions belongs, primarily, in the United States, to the
legislative and executive departments of the Governlment,
and if it be neglected or- omitted, the fearful responsibility
rests with those departments.  nBut, on the other hand, it
would be in vain —worse than in vain, it would be delusive
— to enact wise and wholesome laws, designed to supplement the recognized jurisprudence of nations, and thus avert
those acts of war, which threaten national life, unless those
la-ws are enforced by the judicial tribunals of the land, in
the spirit wlhich inspired their enactment.