27 F. Cas. 367 | S.D.N.Y. | 1851
The indictment in this ease is founded upon the tith section of the act “in addition to the act for the punishment of certain crimes against the United States,” passed April 20, 1818. The provisions of the section are “that if any person shall, within the territory or jurisdiction of the United States, begin or set on foot, or provide or prepare the means for any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district or people, with whom the United States are at peace, every person so offending, shall be deemed guilty of a high misdemeanor.” The indictment, in ninety-seven counts, charges the defendants, by themselves and in conjunction with others, with having, within the United States and at the city of New York, begun a military expedition and enterprise, and with having provided and prepared the means for a military expedition and enterprise, to be carried on from thence against Cuba, the territory and dominion of the queen of Spain, and also against the people of the territory and colony of Cuba. Each count purports to charge the offence in the words of the statute, and the variations between them are. mostly formal only and relate to the different appellations given in the indictment to the Island of Cuba, or place against which the expedition was destined. The defendants move to quash the indictment, for want of averments proper and necessary to be pleaded to by them, or on which any judgment of the court, in case of their conviction by a jury, can be rendered. These objections relate only to the form and structure of the indictment, and if well taken do not dispose of the accusations preferred against the defendants, as they may be obviated by a new bill correcting the deficiencies of the present one.
The essential point raised by the motion, and discussed with great earnestness and force on the part of the defendants, covers their liability to prosecution under any form of indictment, for the act alleged to have been committed by them. The position taken on the merits is, that the act of congress relates solely to the maintenance of a state of neutrality by citizens of the United States, in respect to foreign states in amity with us, but at war with each other. It will be proper to consider in the first place the sufficiency of the indictment as framed, for if that be vitally defective the defendants must be discharged from the present prosecution, and it will be labor lost to investigate and decide the main question as to the force and operation of the statute.
A doubt was suggested preliminarily on the part of the prosecution, whether it is competent for the defendants, after having plead the general issue to the indictment, to withdraw that plea and move to have the bill quashed; or even if the motion to quash is an appropriate one, to bring up merely technical points of pleading. It is true, the defendants, when arraigned, entered their pleas of not guilty to the indictment, but it was without the presence or advice of their counsel, and under the assurance of the court that the plea should no way prejudice their rights, and that they should have the privilege of every defence to the indictment, when their counsel came into court, that they were entitled to by law before the plea of not guilty was interposed. The authority of the court, to control the order of pleading at its discretion, cannot be doubted.
The doctrine of the English books is, that by the common law the court may, in discretion, quash an indictment for such insufficiency, as will make any judgment whatsoever, given upon any part of it against the defendants, erroneous. Hawk. P. G. bk. 2, c. 2Ó, § 140; 1 Chit. Cr. Law; Archb. Cr. PI. p. 04, § 8; Bac. Abr. Indict. K; Com. Dig. (Day’s Ed.) Indict. H. and notes. The American authorities recognize the principle fully. Wbart. Cr. Law, pp. 130, 01, 7, § 1; Barb. Cr. Law, 300, c. 7. But Hawkins says, the judges are in no case bound ex debito jus-titise, to quash an indictment, but may oblige the party to plead or to demur to it. Hawk. P. C. bk. 2, c. 25, § 146.
The first count of the indictment charges, that the defendants, on the 23d day of April, 1S51. within the territory and jurisdiction of the United States of America, to wit, at the city of New York, in the Southern district of New York, and within the jurisdiction of this court, with force and arms did, in conjunction with some other persons to the jurors unknown, begin a certain military expedition, to be carried on from thence against the territory of a foreign prince, to wit. the territory of the queen of Spain, the United States then and there being at peace with the said queen of Spain. The twelve counts succeeding, also count on the words “begin a military expedition”; and state the offence substantially in the same language as the first count, varying from it in some instances in averring the military expedition was to be carried on from the United States, and also in naming Cuba as the place against which it was to be carried
The most material exceptions taken on the part of the defendants to the frame of the indictment, are: 1. That in the 34 first counts it is not stated what acts were done by the defendants, to begin or set on foot a military expedition or enterprise, nor what constituted or composed the expedition, and rendered it military. 2. That the defendants are not charged with having begun or set on foot the expedition or enterprise, with criminal intent, or knowing it to be a military one. 3. That it is not averred from what place in particular in the United States, nor at what time, the expedition or enterprise was to be carried on. 4. That the counts from 75 to 97, do not charge any criminal intent, or that the defendants had any knowledge that the means prepared and provided were to be employed in carrying on a military expedition. 5. That all the counts want the fulness and precision required by law, in describing a criminal of-fence. and connecting any person with its commission.
These objections and various minor ones, raised in the course of the argument, fall under two general considerations: 1. Whether it is legally sufficient in an indictment on this section of the statute, to describe the offence in the words of the act. and if so: 2. Whether the pleading in the present case fulfills the spirit of the rule, by designating times and places and acts, with the distinctness and precision necessary to bring the defendants within the charge of having violated the law.
In England, it is required that indictments for offences made so by statute, when of the degree of felony, shall contain the same formality and precision as on common law of-fences, and it is not enough to pursue the description of the offence given by the statute, but the special acts done, or ingredients of the offence, must be stated in the indictment. 1 Chit. Cr. Law, § 22: Archb. Cr. Law, 50; Star-kie, Cr. PI. 235. It is unnecessary to inquire whether the United States courts have adopted, even in cases of felony, the rigor of the common law rule of pleading in this respect. I apprehend the general practice is to charge statutory offences, carrying with them an infamous punishment, in the words of the statute constituting the offence; for instance, an assault with intent to kill, or commit a rape, or with a dangerous weapon, or making a revolt. Be this as it may as to felonies, the rule is clear and explicit in respect to misdemeanors, that it is generally enough in an indictment to describe the offence in the words of the statute creating it. U. S. v. Kelly, 11 Wheat. [24 U. S.] 418, where the indictment charged the defendant with an endeavor to make a revolt, and it was held by the supreme court to be a sufficient description of the of-fence. In U. S. v. Gooding [12 Wheat. (25 U. S.) 460], the defendant was indicted for fitting out a vessel to be employed in the slave trade —the act of congress of April 20, ISIS, having made it an offence so .to do. - Exception was taken that the particular acts done by the defendant were not specified. There would be, apparently, in those cases, strong reasons for requiring such statement, that it might appear upon the record an offence had been committed, and also to enable the defendant to be prepared for his defence. But the supreme court held the indictment sufficient. [U. S. v. Gooding] 12 Wheat. [25 U. S.] 460. So, on an indictment under the 3d section of the act upon which the present indictment is founded, the defendant was charged with being knowingly concerned in fitting out a vessel with intent that she should be employed in acts of hostility, &c., &c., describing the of-fence in the language of the statute. The court decided that it was sufficient for the indictment to charge the offence in the words of the statute. U. S. v. Quincy, 6 Pet. [31 U. S.] 465. The decision in the last case has more pertinency and weight on the present ques-' tion, because it had reference to a section of this very act¡ and because it declares a mode of describing the offence, no less general and indistinct than the present, to be all that is required in law. In U. S. v. Mills, 7 Pet [32 U. S.] 142, the court again assert the general rule to be, that in indictments for misdemeanors created by statute, it is sufficient to charge the offence in the words of the statute. The court further say there is not that technical nicety, as to form, necessary, which seems to have been adopted and sanctioned by long practice in cases of felony, and, with respect to some crimes, where particular words must be used, and no other words, however synonymous they may seem, can be substituted.
These doctrines are applied in the U. S. circuit courts, in indictments for misdemeanor, in a spirit as broad and liberal as that indicated by the supreme court. U. S. v. Hayward [Case No. 15,336]; U. S. v. La Coste [Id. 15.548]; U. S. v. Martin [Id. 15,731]; U. S. v. Lancaster [Id. 15.556]; Whart. Prec. Ind. 60S, note. And it is worthy of notice that, even in civil actions upon penal statutes, the United States supreme court hold it sufficient to charge the offence, or plead matter of defence in the words of the statute. [Locke v. U. S.] 7 Cranch [11 U. S.] 339; [Gelston v. Hoyt] 3 Wheat. [16 U. S.] 330. The counsel for the defendants suppose a decision of the supreme court of this state has marked a qualification not inconsistent with the rule declared by the supreme court of the United States, but which restores to indictments upon statutes a
After this brief consideration of the general rule in relation to indictments upon statutes for misdemeanors, and the exposition of the supreme court of the United States, of an indictment drawn in the language of the 3d section of the statute in question, it may be proper to advert to the evidence supplied in the action of the judiciary on the section specially under discussion, to ascertain whether any interpretation has been put upon it, which will throw light upon this inquiry and indicate the sense in which this act has been understood and executed. This is a re-enactment of the 5th section of the act of June 5, 1794, with the addition of “or of any colony, district or people,” after foreign prince or state, with whom the United States are at peace. The description of the offence and the punishment are otherwise identical. In April, 1806, indictments were presented in the United States circuit court for this district, against Samuel G. Ogden and William S. Smith, founded upon the 5th section of the act of June 5, 1794. The indictments were very concise, the parties were indicted separately. Trial of Smith and Ogden, vi, ix.
The argument, from the usage of'the courts and the undoubting acquiescence of the profession in support of the sufficiency and propriety of setting forth the offence in question
It was unnecessary in the present indictment to aver that what the defendants did, was done by them with a criminal intent or with knowledge that it was a criminal of-fence. The statute does not make these particulars a part of the description of the offence, but the' definition given imports a criminal knowledge and intent in those committing it. To begin or set on foot, or supply means for a military expedition from the United States to be carried on against a nation at peace with the United States, as already intimated, implies in those concerned in such an adventure, a purpose and intention to do that act understandingly and intentionally, which is pronounced by the law to be a crime. No further charge of a criminal design can be required when not exacted by the terms of the statute, than to state a course of conduct necessarily importing a purpose to do those acts which are forbidden by law. The indictment against the defendants comports in all important particulars and nearly verbatim with those heretofore presented in the three different circuit courts of the United States as above referred to. ‘I do not find, except in one count, the omission of any part of the description of the offence given by the statute, nor the insertion of averments variant from those employed in the preceding cases. In the 19th count, it is not asserted that the military expedition was to be carried on from any place. This is doubtless a clerical error, but it is fatal to the count. In some instances the allegation is, that the expedition or enterprise was to be carried on “from thence” (in the words of the statute), in some, “from the United States.” The argument is that the grammatical relation of the words “from, thence” in several counts, is to “the city and district of New York” and not to the United States. The meaning of the statute undoubtedly is, that the expedition shall be Intended to be carried on from the territory or jurisdiction of the United States, but I apprehend an averment merely that it was to be carried on from the district of New York, would be precise and certain enough, as the court must judicially know that place to be within the jurisdiction of the United .States. But all the counts add the allegation that the act was done within the jurisdiction of the United States, to wit, setting ori foot, beginning, &c., to be carried on from thence. No further certainty is necessary in my judgment,- to render these counts unexceptionable. The words “from thence,” as used in this statute, mean from the United States and are precisely equivalent to the territory or jurisdiction of the United States.
It is questionable, in my mind, whether it is allowable to state in an indictment, that the military expedition was to be carried on against the territory or dominions of a prince or state, to the jurors unknown. That fact, it appears to me, should be ascertained and explicitly averred by the grand jury, and without a knowledge enabling them to present that fact, they could not properly charge the crime to have been committed. It is nearly as incongruous, in view of the object of the statute and the description there given of the offence, for the jurors to say, it is unknown to them against what place the expedition was designed, as for them to have asserted that the defendants did some kind of act, but whether it was beginning or setting on foot a military expedition, was unknown to the jurors. If the jurors do not know against what nation the expedition was to be directed, how can they know it was a nation at peace with the United States? I should certainly, if not controlled by authority or precedents, hold it to be an indispensable part of the description of this-offence, to name the prince or state whose territories or dominions were to be invaded. These same averments, were, however, employed in the three indictments referred to,, and without objection, and were held allowable in civil proceedings by the U. S. supreme court. Locke v. U. S., 7 Cranch. [11 U. S.] 339; Gelston v. Hoyt, 3 Wheat. [16 U. SJ 329. And I shall, therefore, not decide on this motion, that the omission to name the friendly power against whom the enterprise is designed, is fatal to the indict-
In my opinion the motion to quash the in-, dictment for want of proper form, must be overruled. I have given this point of the case a much more extended consideration than its importance or difficulty would seem to demand. I have been induced to bestow more attention upon the structure of the indictment because of the extremely able argument of the counsel for the defendants on the subject, and because this particular branch of criminal pleading has not before been brought distinctly in judgment in the courts of the United States. Independent of the controlling authorities cited in support of the mode of describing the offence pursued in this case, I think on general principles the succinctness and conciseness of description adopted here should be upheld in preference to having the pleadings crowded with multifarious details of facts, a great portion of which must necessarily be conjectural and thrown into the averments, to meet any possible state of proof that might chance to arise on the trial, and would not accordingly afford a specific notiee to the accused ■of the facts relied on by the prosecution for their conviction. In libels of information on a statute to enforce forfeitures, and in de-fence for seizure of property as forfeited, pleading according to the terms of the statutes is held sufficient notice to the claimant and description of the offence. [Locke v. U. S.] 7 Cranch [11 U. S.] 339; [Gelston v. Hoyt] 3 Wheat. [16 U. S.] 339. To aver that the defendants set on foot or begun a military expedition at New York, will apprise them as distinctly of the matter of accusation as to set forth a schedule of faets, which may enter into the preparation of such expedition.
The multifariousness of details might more embarrass than aid the defence, as it would be obvious to the defendants, that although a hundred particulars might be enumerated in the indictment, the public prosecutor on the trial might limit his evidence to a single one, and might prove that by the admissions or declarations of the defendants themselves. There is no advantage afforded a party defendant by a multiplicity of notices ranging over an indefinite series of incidents and circumstances. The law wisely leaves these to the proof, and discards them from the pleadings. In the present case in my opinion, it is matter for proof and not of pleading, to show what was done by the defendants in beginning and setting on foot the military expedition charged against them.
The consideration of the main question on the merits, although the one of greatest magnitude in point of principle, will be made as brief as may be consistent with a distinct expression of the views of the court upon it. The motion to quash the indictment most legitimately attaches to the objection, that the acts charged upon the defendants constitute no violation of the act of congress, and do not fall within the criminal jurisdiction of the court The authorities concur in the doctrine that if the matters alleged in the indictment are not punishable by law, the indictment will be quashed. Whart. cr. Law, 331; Archb. cr. Law, 64; Bac. Abr. Indict K.
The position of the defendants’ counsel is, that the acts of June 5, 1794, and of April 20, ISIS, are neutrality acts, intended to have operation only in case of war between nations in amity with the United States, and to prevent the citizens of the United States committing acts favoring one, and hostile to another belligerent. The argument is, that the passage of the act of 1794 was induced' by the relations then existing between the United States, France and Great Britain, and more especially to check the mischief with which this country was threatened through the pretensions and conduct of Mr. Genet, the French minister. That the legislation of congress being invoked only to the end to declare and enforce our neutral obligations, all the provisions of the statute must be construed in subordination to that purpose, and the 5th section be regarded no more than a restriction upon our citizens in respect to belligerent powers, and not a substantive and independent enactment, declaring a class of offences not known to our own laws, nor recognized by the laws of nations. It is further insisted that the construction claimed for the act of 1794 must be extended to the act of 1818, the latter being a transcript, substantially, of the former; and. also, that the incorporation in it of the act of 1817, which was, by title, avowedly a neutrality act, and nothing more, would tend to characterize the one adopting it, as a neutrality act also.
To determine the justness and pertinency of this train of reasoning, it may be important to look more closely to the foundation of the act of 1794, and endeavor to ascertain whether, in one feature more than another, it rests upon any admitted doctrine of the
The law of nations, which interdicts a neutral power, becoming a party in a war between others with which it is at peace, springs out of and rests upon that code of natural law which recognizes • and declares the right of every nation to remain at peace, and not to be unjustly or wrongfully driven into war by the aggressions of another. Under its doctrine non-interference is as high a duty as neutrality. The right of every people to the undisturbed possession of its territory and independency, and to repel by force every encroachment upon either, is justly placed by writers on the ethics of national law, first amongst those natural rights which it is the end of public law to recognize and preserve. Mart. Law Nat. 69; 1 Wildm. Int. Law, 50; Wheat. Hist. Law Nat. p. 4, c. 1; Vatt. Law Nat § 64; Id. 216, 217, 369. It is denounced as an act of wrongful aggression for any other power to interfere with the independency of a state or people, however objectionable may be its existing form of government or mode of administering it. 1 Kent, Comm. 21; Vatt Law Nat 49, 50, 198, 203. Chancellor Kent seems inclined to sanction the privilege of one nation to interfere in the domestic disturbances and insurrections of another, in behalf of the oppressed and wronged portion of the nation, when requested by it so to do. 1 Kent, Comm. 21-23. But the doctrine is controverted with great strength of argument and authority by a later writer, who repudiates as wholly untenable the notion that one nation is clothed with authority to adjudge upon the internal affairs of another or to intermeddle with them for any cause other than the necessity of its own defence. 1 Wildm. Int Law, 50, 57; 1 Sparks’ Washington, 382 (opinion of Gen. Washington).
The first administration of the government of the United States found itself called upon at an early day, in taking its place in the family of nations, to enforce an observance of the rules of public law in its transactions with two belligerents, each of which was united to this country by numerous ties of interest and sympathy. 2 Marshall’s Life of Washington, 283, 287, 288; 1 Gibb’s Administration of Washington and Adams, 140. The course it would pursue in relation to those engaged in war was explicitly announced by the proclamation of President Washington, dated April 22, 1793. 1 Wait, St. Pap. 44. The instructions of the treasury department of August 4, 1793, adopted by order of the president, framed a system of regulations to govern the conduct of its public officers, in enforcing the spirit of the proclamation in the ports and harbors of the United States. Id. 45. And similar directions were given the governors of states, and the troops of the United States, in respect to the interior of the country. 2 Marshall’s Life of Washington, 334, 355. The president, in his speech at the meeting of congress, Dec. 3, 1793, calls for statutory enactments to sanction and enforce the principles thus promulgated by the government. Wait, St. Pap. 40. But to maintain our neutrality merely between belligerents was not all the exigencies the case called for, nor the whole that was contemplated by the government It is manifest it did not mean to limit its action to a fulfillment towards other nations of its obligations in respect to them as belligerents alone. Its policy was of a broader character, and befitting the principle upon which it came into existence as a government, and exercised governmental powers. As the representative of the people,—their agent, delegated by the people of the United States,—the government adopted an administrative and legislative policy embracing both its direct relationship to foreign states, and the co-ordinate obligations of the citizens individually to uphold and effectuate that relationship. What the government might not do in its public capacity, without an infraction of the law of nations and subjecting itself to reprisals and war, it claimed the people should be prohibited doing individually, giving to its statute book the impress of that law, higher than the codes and rescripts of jurists, which inhib
Mr. Jefferson in his letter to Mr. Genet, June 17,1793, denies the right of the French government to enlist citizens of the United States within our territories into her service, upon the authority of writers on the Law of Nations; and in the end puts the objection to such acts of a foreign government, upon the broad ground, that we are at peace with all nations by the law of nature. “By that law man is at peace with man, till some aggression is committed, which by the same law, authorizes one to destroy another, as his enemy. For our citizens, then, to commit murders and depredations on the members of nations at peace with us, or to combine to do it, appeared, says the secretary of state, to the executive and to those whom they consulted, as much against the laws of the land, as to murder or rob, or to combine to murder or rob its own citizens, and as much to require punishment if done within their limits where they have territorial jurisdiction, or on the high seas, where they have a personal jurisdiction, reaching their own citizens only. So say our laws, as we understand them. To them the appeal is made, and whether we have construed them well or ill, the constitutional judges will decide.” 1 Am. St. P. (Foreign Relations) 124, 155. It is manifest from this despatch that the cabinet then supposed that either the common law of the United States or the laws of the particular states made the acts repro-bated crimes, when committed within their territories, and that individuals would thus be amenable to punishment for the robbery and murder of the subjects of a friendly nation out of our territory the same as if the offences had been committed within any particular state.
The supreme court of Pennsylvania in 1784, had declared the law of nations formed part of the municipal law of the state. Respublica v. Longchamps, 1 Dall. 111. And the chief justice of the United States, and two at least of his able associates, in 1793, expressed their opinions that the law of nations could be enforced by the federal courts, as the common law of the country, against persons indicted for its violation. Whart. St. Tr. 52, 55, 56, 62, 83. This doctrine is upheld by eminent lawyers of that day, writing since the events have passed. Rawle, Const. 10; Dup. Const. 3, note. But it is manifest the popular opinion was against the doctrine. 4 Tuck. Bl. Append. 10. Appeals were accordingly made to the tribunals pursuant to the suggestion of Mr. Jefferson, both in respect to persons serving in armed vessels and with land forces against a friendly people, but it was found that the states either possessed no laws reaching the difficulty, or felt no disposition to enforce them (2 Marshall’s Life of Washington, 233, 334), and that juries would not be governed by the law as laid down by the national judges in the federal courts (Whart. St. Tr. 83, 88).
In this state of the subject, the president in his speech at the opening of the next congress, called the attention of congress to his proclamation, and the regulations he had caused to be adopted, to enforce neutrality, and it is most plain, he contemplated and solicited the interposition of the legislature to compel the citizens to conform in all respects to the principles of the law of nations, recognized and observed on the part of the government, in regard to friendly powers. He says, “It rests with the wisdom of congress to correct, improve or enforce the plan of procedure (adopted by the administration), and it will probably be found expedient, to extend the legal code and the jurisdiction of the courts of the United States to many cases, which, though dependent on principles already recognized, demanded some further provisions. Where individuals shall, within the United States, array themselves in hostility against any of the powers at war, or enter upon military expeditions or enterprises within the jurisdiction of the United States, or usurp and exercise judicial authority within the United States; or where the penalties or violations of the law of nations may have been indistinctly marked, or are inadequate, these offences cannot receive too early and close an attention, and require prompt and decisive remedies.” 1 Wait, St. Pap. 40; 1 Am. St. P. (Foreign Relations) 22. It is to be remarked, that out of three of the above four special calls for extending the criminal code, one only directly relates to a state of neutrality, the others looking to provisions for maintaining the sovereignty and peace of the United States in their relations with foreign powers, as well in peace as at war with each other.
The act of June 5, 1794, was passed the same session of congress, to which the above recommendation was addressed, and it deserves notice, as evidence of the scope and design of the enactment as understood by those active in producing its passage, that Mr. Jefferson, in 1806, as president, with the concurrence of Mr. Madison, secretary of state, caused prosecutions against Smith and Ogden and Col. Burr to be instituted, for setting on foot in the United States, warlike expeditions against provinces of Spain, and without any allusion to the of-fences imputed against them being violations
The government of the United States has not considered it as sufficient to confine the duties of neutrality and non-interference to the case of governments whose territories lie adjacent to each other. The principle they regard the same, if those territories be divided by half the globe. The rule is founded on the impropriety and danger of allowing individuals to make war on their own authority, ' or, by mingling themselves in the belligerent operations of other nations, to run the hazard of counteracting the policy or embroiling the relations of their own government, and the United States have been the first among civilized nations to enforce that observance of this just rule of neutrality and peace by special and adequate legal enactments. By these laws it is prescribed to the citizens of the United States, what is understood to be their duty as neutrals by the law of nations, and their duty also which they owed to the interest and honor of their own country. Mr. Webster’s letter to Mr. Pox, April 24, 1842; 1 Ex. Docs. (27th Cong., 3d Sept.) p. 127. The executive government since that period has adhered to the doctrine avowed in the above despatch, and denounced as a violation of the law of the land all acts contravening the terms of the 6th section of the act of 1818. That the law applies to and prohibits the setting on foot warlike expeditions in the United States to be carried on against any friendly power, was strongly maintained and declared during the administration of Mr. Van Burén.
The president in his proclamation of Nov. 21, 1838, declares that the combination or association of citizens of the United States to disturb the peace of the dominions of a friendly nation, is a violation of the laws providing for the performance of our obligations to the other powers of the world, and of that sacred code of laws by which national intercourse is regulated. 1 Ex. Docs. (3d Sept., 25th Cong.) p. 34. In his message to congress the president is distinct and explicit in asserting “that military invasions by our citizens into friendly countries and the commission of acts of violence on the members thereof, in order to effect a change in their government, or under any pretext whatever, have from the commencement of our government, been held equally criminal on the part of those engaged in them, and as much deserving of punishment as would be the disturbance of the publje peace by the perpetration of similar acts within our own territory.” These principles the president says were cherished and established by the great and good men who declared and established our independence, and were maintained at a highly critical period in our history, and subsequently embodied in highly penal enactments, the faithful enforcement of which he regards inseparably associated with the maintenance of our national honor. Id. pp. 5, 6. This language of the president was applied to the non-interference provisions of the statute, and not to those which may be strictly termed the neutrality clauses, and what he solicited from congress was a precautionary law to enable the executive to anticipate parties attempting the commission of the offences named in the 6th section and arrest them or their means before. the acts should be actually consummated. So Attorney General Butler, in his opinion, upon the power of the president to seize, under the act of 1818, the arms of citizens setting on foot a military expedition against Canada, assumes that the 6th section applies to enterprises such as those then carried on against Canada. 2 Op. Attys. Gen. U. S. 1176. Neither the president or attorney general regard it an ingredient of the offence, that the state to be invaded, should be at war with another.
Looking at the provisions of the first section of the act of 1838, prepared as is understood with the sanction of the president, the secretary of state and attorney general, it seems to import a most explicit recognition that the acts done and means provided in the United States for carrying on warlike enterprises or expeditions into Canada, were in the then state of that province and the country, infractions of the 6th section of the act of 1818, and what was needful was something more than punishment by fine and imprisonment for the offences, when perpetrated, “provided,”- as the president says, “the parties can be found.” It was a summary authority to intercept and break up the design
This is all I deem necessary to be said in this connection in relation to the views of the executive department of the government, antecedent and subsequent to the passage of the law (and in this respect the acts of 1794 and 1818 may be regarded identical), showing that it was called for and always accepted and enforced as a law, no less of non-interference by our citizens by military expeditions against nations at peace with all the. world, than one prohibiting acts of hostility in favor of any belligerent power against another in peace with the United States. This topic, however, being the one on which the defendants chiefly rely, they insisting the act of congress does not apply to the facts alleged against them, and the question being of great public moment to our own citizens and in our relations with foreign .governments, it is meet the subject should be considered under other aspects. And I think the import of the law collected from its face, according to the established rules of interpretation plainly denotes the intention of congress to stamp as crimes acts done within our territories, designed to violate the peace and rights of a friendly people, whatever may be the relation of such people in respect to other nations. The cardinal consideration is, are they in amity with the United States, and if so, no persons shall be permitted within our jurisdiction, to take any warlike measures designed to disturb that peace.
We have already seen that the attention of •congress was called to the subject of this law, because of unwarrantable usurpation of powers within the United States by the French minister. He openly claimed the Tight, and attempted to exercise it, to commission, arm, equip and man cruisers in our ports to commit hostilities on nations with whom the French were at war, and also to recruit land forces, issue commissions to officers, and organize within and march from our territories such forces against Florida and Louisiana, the dominions of Spain, or any other enemy of France. -2 Marshall’s Life of Washington, 283, 287, 2SS, 334, 335. He publicly denied the power •of this government to prevent his doing such acts, and a governor of a Western state, in which a warlike expedition was setting on foot against New Orleans, when required by the president to suppress it, coincided with the French minister, and denied there was any law of the United States prohibiting the enterprise. Id. 334, 335. This was In 1793. The measures taken by congress were designed to extend the criminal laws, and bring within them the very acts the government complained of and was endeavoring to suppress. It is nowhere said or intimated in the statute that this was done to maintain our neutrality in a technical sense. The act takes the title of an act “for the punishment of crimes against the United States,” and only the 3d and 4th sections have express reference to acts in relation to other nations at war. The act under the same title was continued in force March 2, 1797, and made perpetual April 24, 1800. Nothing Is more common than for the legislature to make provision in a public statute for matters beyond and distinct from the special causes which promoted its passage, and no principle of construction limits the operation of a statute to a particular mischief it remedies, when others of a kindred character are brought within its language.
It is the constant course of legislation, in removing a special evil or mischief, to make the enactments affecting .it broad enough to suppress others, whether similar in character or wholly distinct from it in their nature. In such cases the statute is never interpreted to have relation only to the subject which more particularly called it into existence, but is made to operate in conformity to its language. Its true meaning is to be sought for in the body of the act itself. 1 Kent, Comm. 460, 463. Reading the act of 1794, with a view to these sensible and satisfactory rules of interpretation, it is difficult to see ground for doubt, that it does embrace and is carefully framed to include a class of offences distinct from those commonly understood to be infractions of the laws of neutrality. It devotes two sections specifically to those particular offences, and then furthermore declares to be high mis-, demeanors, for our citizens to enlist in foreign service or take commissions in it, or for any person within the territory or jurisdiction of the United States, to set on foot a military expedition, &c., &c., against any state, people, &e., with whom the United States are at peace. I see no mode of satisfying this language, but in holding it comprehends all the acts denounced, when committed within the United States, against a friendly power, without respect to his relationship to other powers. This, it appears to me, has been the acceptation in which the act has been received by our judges and most eminent jurists since its enactments.
The first instance in which the 5th section of the act of 1794 appears to have been acted upon judicially, was in the ease of Bollman and Swartwout. The main point in the case related to other questions, but after the court had decided that the prisoners could not be held in the District of Columbia under imprisonment there for treason committed elsewhere, and that the facts in evidence did not prove the crime of treason, a question seems to have been made whether the prisoners were not liable to prosecution and to be detained under the 5th section of the act of 1794 for trial. The court say, “Admitting the affidavit of Geni. Wilkinson, both prisoners were guilty of a most culpable enterprise
President Van Burén, in his message to congress of Dec. 3, 1838, before cited, in reference to the hostile movements on foot in this country against Canada, says, “It is by the laws already made criminal in our citizens by unauthorized military operations on their part, to embarrass or anticipate the decision of congress, whether the country shall interfere with or be made a party to the struggle in those provinces.” In his message of January 5, 1838 (which led to the act of 1838), the president further says,. “The existing laws are insufficient to guard against hostile invasions, from the United States, of the territory of friendly and neighboring nations. The laws now in force provide sufficient penalties for the punishment of such offences after they have been committed, and provided the parties-can be found; but the executive is powerless in many cases to prevent the commission of them, even when in possession of ample evidence of an intention, on the part 'of evil disposed persons, to violate our laws.” 2 Executive Documents (25th Cong., 2d Sess.) Document 64. And the act of March 10, 1838 [5 Stat. 212], passed in compliance with the instance of the president, to aid the execution of the 6th section of the act of 1818, most manifestly indicates the understanding of congress that the offences denounced came within the meaning of that statute, and the latter one was required in the péeuliar situation of the two countries to enable the president to enforce the former according to its spirit and intent.
Mr. Webster in his correspondence with-the British minister, Mr. Fox, on this subject, before cited, also represents the act of 1818 as covering the very case of an invasion of Canada, from the United States, in a time of peace, within and without the provinces. 1 Ex. Docs. (27th Cong., 3d Sess.) p-127. So, also, President Taylor in his proclamation, August 11, 1849, expressly pronounces the alleged enterprises on foot in the United States against Cuba, to be a violation of the criminal laws of the United States. 3 Ex. Docs. (1st Sess., 31st Cong.)pt. 1. The same declaration is repeated, by authority of President Fillmore, by Mr. Webster, in public instructions to the U. S. attorneys. Circular, Sept 3, 1850. So far as-the act has come within the cognizance of the United States judges, they have invariably recognized the 6th section as applicable to and designed to punish such state of facts. In 1835, the grand jury of this district submitted to the circuit judges the en-quiry whether it was a violation of that section, for persons to hold meetings in this city and appoint committees to provide means and make collections for the purpose of enabling the inhabitants of Texas to engage in a civil war with Mexico, now at peace with the United States. The judges,. Thompson and Betts, answered in writing, that the section applied to military expeditions to be carried on from the United' States, and that the case supposed did not fall within it. But the answer necessarily imports the opinion of the judges that such military expedition would be a violation of the law. 3 Ex. Docs. (25th Cong., 2d Sess.).. Judge Rawle, of the local court, New' Orleans, in effect ruled the same point. Id. p. 22. Judge Conkling, in a letter to Mr. Fillmore in congress, on this subject, puts the-same construction upon the 6th section of
Judge McLean,* in a matured charge delivered the grand jury, in relation to the hostile movements from our territories upon Canada, in 1838, declares the 6th section of the act has application to military expeditious of that character, against a people at peace with us and within itself. [See Charge to the Grand Jury] 2 McLean, 1. It may be added that this court, in 1850,. gave similar instructions to the grand jury in this district, in respect to military expeditions against Cuba, and repeated the same sentiment to the grand jury who found the indictment now under consideration. In the circuit court at New Orleans, Judge McCa-'leb recently instructed the grand jury that the act applies to the case of setting on foot or providing means for a military expedition against Cuba, from the United States; and in his charge to the petit jury on th'e trial of the indictment and after prolonged discussions upon the subject, he adheres to that interpretation of the law. Pamph. Rep. pp. 4, 7, 29.
After this review of the subject in its various bearings, I am prepared to say,, that upon the plain language of the statute, —from the circumstances which Induced its .passage, the double obligation of the government to keep individual citizens aloof from the conflicts of foreign powers, and to prevent their making private war upon nations at amity with us,—from the concurrent views of executive and judicial officers as to the meaning and design of the statute, that the case made by this indictment comes within the purpose and meaning of the sixth section of the act of 1818 and is a manifest •violation nf its provisions. The motion to quash the indictment cannot, therefore, on these views of the subject, prevail. But I would remark that, notwithstanding my •own conviction, resulting from a careful survey of the questions debated on this motion', that the acts of the defendants •charged in the indictment, constitute an infraction of the sixth section of the act of 1818, and are sufficiently laid in the indictment; yet, in deference to the opinion of the distinguished counsel of the defendants, so ■earnestly expressed and so ably supported, I shall submit this decision to the consideration of the judge of the circuit court; and if he suggests a doubt of the justness of the conclusions adopted in it, or shall intimate that he does not concur in them, I will then remit the case to the circuit court, that the ■defendants may, by means of a difference of ■opinion of the two judges, have the points •certified to the supreme court for final decision.
[Cases Nos. 16,341a-16,342b.]
[Cases Nos. 16,341a-16,342b.]