United States v. Quincy

THIS case came before the court on a certificate of division of opinion by the judges of the circuit court of the United States for the destrict of Maryland.

An indictment was found against the defendant in that court at May term 1829, founded on the third section of the act of congress, passed April 20, 1818, entitled 'an act in addition to the 'act for the punishment of certain crimes against the United States,' and to repeal the acts therein mentioned.'

The third section provides: 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, with the intent that she may be employed as aforesaid, every person so offending shall be guilty of a high misdemeanour, 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 indictment contained fifteen counts, upon two only of which evidence was given; and the questions upon which the judges of the circuit court were divided in opinion, arose on those counts, and on the evidence in reference to the matters stated in them. They were the 12th and 13th counts.

12. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said John D. Quincy, on the day and year aforesaid, at the district aforesaid, within the limits of the United States, and within the jurisdiction of the United States and of this court, with force and arms, was knowingly concerned in the fitting out of a certain vessel called the Bolivar, otherwise called Las Damas Argentinas, with intent that such vessel be employed in the service of a foreign people, that is to say, in the service of 'the United Provinces of Rio de la Plata,' to commit hostilities against the subjects of a foreign prince, that is to say, against the subjects of 'his imperial majesty, the constitutional emperor and perpetual defender of Brazil,' with whom the United States then were, and still are at peace, against the form of the act of congress in such case made and provided, and against the peace, government and dignity of the United States.

13. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said John D. Quincy, on the day and year aforesaid, at the district aforesaid, within the limits of the United States, and within the jurisdiction of the United States and of this court, with force and arms, was knowingly concerned in the fitting out a certain other vessel, called the Bolivar, otherwise called Las Damas Argentinas, with intent that the said vessel should be employed in the service of a foreign people, that is to say, in the service of the United Provinces of Rio de la Plata, to cruise and commit hostilities against the subjects and property of a foreign prince, that is to say, against the subjects and property of his imperial majesty the constitutional emperor and perpetual defender of Brazil, with whom the United States then were and still are at peace, against the form of the act of congress in such case made and provided, and against the peace, government and dignity of the United States.

The defendant pleaded not guilty; and the cause came on to be tried before the circuit court, on the 8th day of April 1830.

On the part of the United States evidence was given of the repairing and fitting out of the schooner Bolivar in the port of Baltimore in 1827. That she was originally a Maryland pilot boat of sixty or seventy tons. The work was done at the request of Henry Armstrong and of the defendant, who superintended the same; that she was fitted with sails and masts larger than those required for a merchant vessel, and was altered in a manner to suit her carrying passengers, and with a port for a gun. This evidence on the part of the United States was intended to apply to the twelfth and thirteenth counts in the indictment, and to sustain the allegations therein.

It was in proof, that the Bolivar sailed from Baltimore for St Thomas on the 27th September 1827, having on board provisions, thirty-two water casks, one gun carriage and slide, a box of muskets and thirteen kegs of gunpowder, and after a bond had been given by John M. Patterson as master, and George Stiles and Victor Valette of Baltimore as owners, not to commit hostilities against the subjects or property of any prince or state, or of any colony, district or people with whom the United States were at peace. After her arrival at St Thomas, Armstrong had no funds, and was uncertain whether he could get funds. At St Thomas she was fitted as a privateer and sailed to St Eustatia, having changed her name to Las Damas Argentinas; the defendant was her captain during the subsequent cruise. Armstrong was on board, not as an officer, but as an owner, and as agent for the other owners. Armstrong on the voyage from Baltimore told a witness, that if the vessel went privateering it would be under the Buenos Ayrean flag; and that he had procured a commission for the Bolivar from an agent of the Buenos Ayrean government at Washington, for eight hundred dollars.

A witness swore that he conversed with Armstrong about going to the West Indies, that Armstrong told him it was his intention, or rather his wish, to employ the Bolivar as a privateer; but he had no funds to fit her out as such, and could not tell, until he got to the West Indies, what he might ultimately do. Armstrong wanted witness in Baltimore to advance some funds, and told him he would be glad if witness would go as surgeon. He spoke of the difficulty of getting funds, both in Baltimore and in the West Indies. The witness knew that Armstrong had no funds when he arrived in the West Indies, and was two or three days negotiating with Cabot and Co. of St Thomas, and was uncertain of there getting funds.

From St Eustatia the vessel proceeded, under the Buenos Ayrean flag, and captured several vessels, Portuguese, Brazilian and Spanish; which were ordered, in consequence of the blockade of the Rio de la Plata, to the West Indies, in pursuance of instructions from the government of Buenos Ayres. The cruise terminated on the 1st of March 1828: one prize and cargo produced thirty-five thousand dollars, which was distributed among the crew.

It was admitted that before the year 1827, the United Provinces of Rio de la Plata had been regularly acknowledged as an independent nation, by the executive department of the government of the United States.

The defendant moved the circuit court for their opinion and direction to the jury:

1. That if the jury believe, that, when the Bolivar left Baltimore, and when she arrived at St Thomas, and during the voyage from Baltimore to St Thomas, she was not armed or at all prepared for war, or in a condition to commit hostilities; the verdict must be for the traverser.

2. That if the jury believe that when the Bolivar was fitted and equipped at Baltimore, the owner and equipper intended to go to the West Indies in search of funds with which to arm and equip the said vessel, and had no present intention of using or employing the said vessel as a privateer, but intended when he equipped her, to go to the West Indies, to endeavour to raise funds to prepare her for a cruise; then the traverser is not guilty.

3. That if the jury believe, that when the Bolivar was equipped at Baltimore, and when she left the United States, the equipper had no fixed intention to employ her as a privateer, but had a wish so to employ her, the fulfilment of which wish depended on his ability to obtain funds in the West Indies, for the purpose of arming and preparing her for war; then the traverser is not guilty.

4. That according to the evidence in this cause, the United Provinces of Rio de la Plata is, and was at the time of the offence alleged in the indictment, a government acknowledged by the United States; and that the United Provinces of Rio de la Plata is, and then was a state, and not a people within the meaning of the act of congress under which the traverser is indicted; the word 'people' in that act being intended to describe communities under an existing government, not recognized by the United States; and that the indictment therefore cannot be supported on this evidence.

The district attorney of the United States moved the court for their opinion and direction to the jury:

1. That if the jury find from the evidence, that the traverser was, within the district of Maryland, knowingly concerned in the fitting out of the privateer Bolivar, alias Las Damas Argentinas, with intent that such vessel should be employed in the service of the United Provinces of Rio de la Plata, to commit hostilities, or to cruise and commit hostilities, against the subjects, or against the subjects and property of his imperial majesty, the constitutional emperor and perpetual defender of Brazil, with whom the United States were at peace, then the traverser has been guilty of a violation of the third section of the act of congress of the 20th of April 1818, which punishes certain offences against the United States; although the jury should further find, that the equipments of the said privateer were not complete within the United States, and that the cruise did not actually commence until men were recruited, and further equipments were made at the island of St Thomas in the West Indies; and should further find that the Bolivar, on her voyage from Baltimore to St Thomas, had no large gun, no flints, nor any cannon or musket balls, and that the muskets and sabres were, during the voyage, nailed up in boxes.

2. That if the jury find from the evidence, that the traverser was, within the district of Maryland, knowingly concerned in the fitting out of the privateer Bolivar, alias Las Damas Argentinas, with intent that such vessel should be employed in the service of the United Provinces of Rio de la Plata, to commit hostilities, or to cruise and commit hostilities against the subjects, or against the subjects and property of his imperial majesty, the constitutional emperor and perpetual defender of Brazil, with whom the United States then were at peace, then the traverser has been guilty of a violation of the third section of the act of congress of the 20th of April 1818, which punishes certain crimes against the United States; although the jury should further find, that the intention so to employ the said vessel was liable to be defeated by a failure to procure funds in the West Indies, where further equipments were intended and required to be made, before actually commencing the contemplated cruise.

3. That if the jury find from the evidence, that the traverser was, within the district of Maryland, knowingly concerned in the fitting out of the privateer Bolivar, alias Las Damas Argentinas, with intent that such vessel should be employed in the service of the United Provinces of Rio de la Plata, to commit hostilities, or to cruise and commit hostilities against the subjects, or against the subjects and property of his imperial majesty, the constitutional emperor and perpetual defender of Brazil, with whom the United States then were at peace, then the traverser has been guilty of a violation of the third section of the act of congress of the 20th of April 1818, which punishes certain crimes against the United States; although the jury should further find, that the fulfilment of the intentions so to employ the said vessel, would have been defeated if further funds had not been obtained in the West Indies, where further equipments were intended and required to be made before actually commencing the contemplated cruise.

4. That the twelfth and thirteenth counts in the indictment are good and sufficient in law, whereon to found a conviction; notwithstanding the employment therein of the words 'in the service of a foreign people, that is to say' preceding the words 'in the service of the United Provinces of Rio de la Plata.'

Upon the aforesaid prayers, and upon each of them, the judges were opposed in opinion; and thereupon the court ordered the same to be certified to the supreme court of the United States.

The case was argued by Mr Williams, for the United States: and by Mr Writ, for the defendant.

Mr Williams, for the United States, contended, in support of their first prayer, that the guilty intention having been proved to have existed in the mind of the traverser in the United States, and the guilty enterprise having actually commenced there, the traverser is guilty of a violation of the third section of the act of the 20th of April 1818; although the equipments were not completed in the United States, and although the cruise was not commenced, nor the Bolivar prepared to commence her cruise, until after her arrival in St Thomas.

The section in question punishes the fitting out and arming; the attempting to fit out and arm; the procuring to be fitted out and armed; and, with a view to comprehend all who shall have any participation in disturbing the neutral relations of the United States, it punishes those who shall be knowingly concerned in the furnishing, fitting out or arming any ship or vessel, with intent, &c. The offence charged here is for being knowingly concerned in fitting out, &c.

The Bolivar was in fact not only fitted out in the port of Baltimore, but was partially armed; having on board muskets, sabres, powder and a gun carriage, and a commission to cruise.

If it be necessary for the completion of the offence, that the vessel should not only be fitted out, but also armed, it is manifest that this important act of congress, required by the laws of nations, and essential to preserve the peace of this country with foreign nations, will become a dead letter. For it is not only easy to evade its provisions, but at least equally convenient to do so, by having some additional equipments, however inconsiderable, to be effected abroad. This position admits that the attempt to fit out and arm, however small the progress therein, is an offence; while the complete fitting out, having a commission on board, with the most flagrant intention to privateer, is no infringement of the act. The slightest augmentation to an armed vessel, is undeniably an offence under the fifth section.

The policy and scope of this whole law, so far from restraining the express terms used in this section, afford the strongest aid towards a literal construction of those terms. The twelfth and thirteenth counts of this indictment, and the first prayer, are drawn in the very words of the third section of the act in question. And if these counts and this prayer are not sustained, it must be on the ground that the act ought to be interpreted differently from its obvious and literal meaning.

The reason for a strained interpretation, which will have the effect to defeat and repeal this wholesome statute, will scarcely prevail with this court. And the authorities will be found to overthrow such an interpretation; and to support that which is insisted on by the prosecution.

The exact and faithful discharge of the duties which a neutral position imposes upon governments, is among the highest and most important of all national duties. Honour and interest concur in making it especially binding on our own government: and while this conduct has in a very great degree promoted the prosperity of this country; it has placed the policy and character of the nation in a high and elevated position in the estimation of other powers.

In the third circuit and Pennsylvania district, a decision was made upon the words on which this indictment is drawn; and it was there decided, in the case of the United States v. Guinet, 2 Dall. 321, 'that the converting a ship from her original destination, with intent to commit hostilities; or, in other words, converting a merchant ship into a vessel of war, must be deemed an original outfit, for the act would otherwise become nugatory and inoperative. It is the conversion from her peaceable use to the warlike purpose, that constitutes the offence.' And in this case far less advance towards arming was made, than in the case of the Bolivar. Besides, that the privateer Les Jameaux never actually proceeded on a cruise, and yet Guinet was convicted. Whereas, in the case at bar, the Bolivar, having actually performed her cruise and made captures of vessles and property of nations with whom the United States were at peace; no room is left for doubting the object of her outfit in the port of Baltimore.

In the case of Needham et al., Peters's C. C. Rep. 487, the same principle was decided.

Cited, also, The United States v. Glass, 3 Wash. C. C. Rep. 65; Kent's Commentaries, 1 vol. 114.

The decisions of this court on the acts prohibiting the slave trade, furnish cases strikingly analogous to the one now under argument.

The expressions used in these acts seem, indeed, to require a more complete development and fulfilment of intention, than the neutrality acts. In the last slave trade act, which passed at the same session as the act upon which this indictment is framed, it is provided, that 'if any ship or vessel shall be built, fitted out, equipped, laden, or otherwise prepared, for the purpose of procuring any negro,' &c. 'such ship,' &c. 'shall be forfeited.' The Emily and Caroline, 9 Wheat. 388; The Plattsburgh, 10 Wheat. 141; The United States v. Goodin, 12 Wheat. 171, 173; The Alexander, 3 Mason, 177; 1 Dodson, 81, were cited.

Mr Chief Justice Marshall says, in giving the opinion of this court, in 5 Wheat. 95, 'that although penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which these words in their ordinary acceptation, or in the sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ; where there is no ambiguity in the words, there is no room for construction.' Cited, also, 2 Peters, 662, opinion of Mr Justice Story.