28 F. 148 | S.D. Fla. | 1886
The only ground upon which a libel for prize can be sustained is that of a state of war. .Prize only relates to or is connected with such a state or condition. A vessel captured for engaging in piratical aggression becomes a prize on account of the state of universal war presumed to have been declared by a pirate against commerce and human kind at large, which requires no reciprocal declaration from any nation. Whether piracy is considered as a name applied only to indiscriminate plundering and robbery, either upon the high seas or upon the coasts where the high seas are used as the basis of operation, where the animus furandi is the distinguishing feature, as is expressed and held by President Woolsey, precluding the idea of a revolutionary or political sentiment, or whether there may be acts of piracy Committed in following out the direct course of a revolutionary struggle, as is contended by Judge Brown in the recent case of The Ambrose Light, 25 Fed. Rep. 408, there must be some overt act either in committing or attempting some offense against the law of nations, to give a piratical character to a vessel. An intent alone can never determine such a state of warfare as would justify the seizure of a prize. There is in this case nothing that can be characterized as an overt act of piracy or warfare, and the libel for forfeiture as prize must be dismissed.
The second libel is for forfeiture for the violation of a municipal statute embodied in section 5283, Bev. St.
It is claimed in behalf of the respondent that, if one libel is dismissed, such dismissal necessarily precludes an examination of the other, upon the principle of election or choice of action against the thing. But these libels, although against the same vessel, found under peculiar circumstances, are in no way based upon the same cause of action. The libel for prize is founded upon the law of nations, and depends for proof upon the facts of her acts upon the high seas; the libel for forfeiture is for the violation of a municipal statute, and depends upon a set of facts and circumstances entirely different from that of piratical aggression. The offenses charged are separate and distinct, and the cause of action is in nowise the same. In U. S. v. Weed, 5 Wall. 62, and The Watchful, 6 Wall. 91, the same question is directly settled.
The libel for forfeiture alleges that certain persons were knowingly concerned in the furnishing and fitting out of said vessel, with the intent that she should be employed to cruise or commit hostilities against the people of the state of Honduras, with whom the United States is at peace. The peace existing with the state of Honduras may be judicially recognized, and there only remains the questions of knowingly furnishing and fitting out of said vessel, and the intent with which she was fitted out.
The terms “furnishing” and “fitting” have no legal or technical meaning, which requires a construction different from the ordinary acceptation in maritime and commercial parlance, which is to supply
Whatever may have been the intention of the legislators regarding the particular class of hostilities they were desired to prevent, all we have to decide from is the language with which they have clothed their ideas, and this is broad enough to include all classes of hostilities. It has been ably argued that unless the vessel is so armed that she herself can be the offending party or thing, or, in other words, carries such an armament as can throw projectiles from her port, or is equipped as a man-of-war or armed vessel, the statute will not apply. Tho terms “peaceful” and “warlike,” “friendly” and “hostile,” are thoroughly recognized; and the line so plainly marked between what should be the course and conduct of a vessel engaged in a peaceful commercial venture, and one fitted, prepared, and intended for hostilities, is so distinct and well defined as to permit no mistake, nor require a reference to a judicial decision.
A peaceful act, a peaceful voyage, cannot be a hostile one; nor 'can acts looking towards war or enmity escape from tho general term “hostilities.” It is true that vessels may frequently be engaged in transporting troops as passengers, and war material as freight, without themselves having any connection with the actual hostilities contemplated, so that their voyages in no way partake of the nature of hostile acts, nor they be liable to be charged with the commission of hostilities. The Lafayette and Ville le Paris, cited in Hall, Int. Law, 564. Or where troops, conveyed as passengers only, are landed as such, although bound on a hostile expedition, where all connection and relation existing between them and the vessel are to be terminated at their leaving her side, the question becomes one of more difficulty. But when it is intended that a vessel shall herself be part and portion of a hostile expedition; that she shall carry troops, not for the purpose of making quiet and unopposed landing, and leaving them to take the risk of war subsequently, but making for them, or with them, if found necessary, a forcible and hostile landing; standing ready to put them on shore, or receive them on board defeated; to convey and furnish them with arms, ammunition,
It has been conclusively determined that it is not necessary that the vessel be armed or manned for the purpose of committing hostilities before leaving the United States, if it is the intention that she should be so fitted subsequently. U. S. v. Quincy, supra. So there need be no evidence of such arming or manning.
The intention of parties charged with a crime, when the intent is the gist of the offense, is the most difficult of all matters to prove, and in a vast majority of instances, like the present, can only be shown by a chain of circumstances fitting into each other, against every point of which may be expected the denial of all parties in interest, either positive and direct, or as nearly so as the respect for an oath and the ingenuity of the witness will permit.
This vessel, ostensibly owned by Christian B. Hollander, of New York, sailed December 22, 1885, from New York for Central America, having for cargo about 7,000 bags of, corn. She was cleared for Progresso, Blewfields, and Corn island, and had as passengers Gen. Emilio Delgado, Col. Manuel Moray, Mariana Soto, and 17 others, who were going at the expense and in the employ of Gen. Delgado. The master was intrusted with a bill of sale of the vessel to Gen. Delgado, and a power of attorney to execute it at any time. He also had a letter of instructions, directing him that, after he should have discharged his cargo of corn at Progresso, he should receive his orders from Gen. Delgado, who accompanied him, should visit such' ports or places, take such cargoes or such passengers from and to such ports or places, as he (Delgado) should direct. Before leaving New York there were several cases of merchandise taken on board; but, after inspection by officers of the custom-house, they, which proved to be a cannon, with carriage, furniture, and ammunition, were taken out, and, when the vessel sailed, left behind. It is testified to directly by a number of the crew that while on the voyage Col. Moray and several of the passengers openly spoke of their plans of the voyage; saying that they were going on an expedition to Honduras, and were to fight; that they were going to receive arms from another vessel, and were going first, to capture Buatan; and that the steam-ship was going to cruise between this island and the main-land to cut off communication. When they reached Progresso, Col. Moray (who next to Gen. Delgado seemed to be in charge of the company) requested the purser or steward to get men, telling him they were to
There were found on hoard, not belonging to them, three flags, blue and white, with five stars, resembling the Honduras flag; bird’s-eye views of fíuatan, Truxillo, and other places in Honduras, showing particularly all defenses and fortifications; also maps showing principal cities, towns, and roads; several revolvers; three swords; and in possession of Gen. Delgado a case of surgical instruments and bandages, two sets of field telegraph instruments, 10 half barrels of beef, and 100 barrels of flour, which were claimed as the property of Delgado, and bore the same shipping marks as the camion and ammunition taken from the vessel before leaving New York. At Blewfields, Gen. Delgado drew $4,000 in silver, part of which has been disbursed for the expenses of the ship. The rest was on board.
These are circumstances connected with the vessel herself and her voyage. Much of the conversations in regard to the futuro use of the vessel, and the intentions of the parties, has been denied with more or less directness. The defense is that Gen. Delgado held a grant or concession of a large tract of land on the Bio Coco, Nicaragua, and that the expedition was to be one for colonization and agricultural purposes, rather than hostile; that the passengers and parties employed at Merida and Belize wore agricultural laborers, and not soldiers; and that their final intended destination was Ipew-fields; but tboir not being permitted to land interfered with their plans, and brought about the final suspicious circumstances. Were there no other circumstances connected with the case that bore upon it, perhaps, in the leniency of courts, and the disinclination to enforce forfeitures, such view might be accepted; hut there were chains of evidence leading to the City of Mexico from another direction.
It appears in evidence that before the vessel left New York, Mr. Marks, a member of the firm of Straus & Co., the agents of the ves
What were the intentions for her future course ? Bogan says that he was told they were to make an attack on Honduras. It is urged that Bogan has not been connected with the City of Mexico sufficiently to make his testimony relevant; but I think the combination of circumstances proven shows that he was employed or hired to join her on the expedition, under loaders engaged in the same enterprise; and the declaration of such parties may be considered. The crew of the City of Mexico say that those partially in command of a part of the expedition openly announced the intention to attack Honduras. Although not in Honduras waters, nor to go there on any legitimate voyage, they had employed a party who declared himself to be a Honduras pilot. They had bird’s-eye views of the fortifications and places along the coast of Honduras. The whole character of the voyage shows it was not a commercial one. No cargo was taken, no cargo looked for, — only arms and ammunition, which are not the implements of peaceful colonization or agriculture. The arms were not shipped or to be received for sale as a financial speculation. There was no war in that part of the world going on or in contemplation, except what was intended by Gen. Delgado, for whom they were intended.
I can arrive at but one-conclusion: that acts of hostility were contemplated and intended at the time of furnishing and fitting out the City of Mexico, in which she was to take an active part, and that it was intended that she should receive arms and ammunition, and, in the language of the statutes, she should commit hostilities.
The decree of forfeiture must follow.