JUDGE NELSON. That is using a word that may have no meaning, if it means simply a sale for money.

MR. COURTNEY. If it means a sale, for money, to the Chilian government, if the sale was made in New York, with the intent on the part of the owners, or the agents of the owners, that the vessel was to be sent out beyond Sandy Hook to cruise against the commerce of Spain, she is liable to be condemned.

JUDGE NELSON. That is, if they knew it.

MR. EVARTS. Where is there any such evidence?

MR. COURTNEY. We cannot enter into the bosom or heart of the party to ascertain directly, or from their own mouth, their intent; but intent is always ascertained by the circumstances surrounding the transaction. Now I shall detain your Honor for a moment on the question of intent, before I undertake to deduce it from the testimony in this case. Your Honor will recollect that the Meteor was a vessel constructed very peculiarly, and for peculiar purposes. After the fall of Fort Fisher, the vessel was not required for those purposes, and she went immediately, as we are informed, into some commercial adventures. We find these negotiations commencing in September, immediately after the arrival of Mackenna as special agent from Chile in this city, with Rogers and other parties, and in December negotiations were made for the purpose of delivering the vessel to the Chilian authorities, either at Sandy Hook, or somewhere outside the port of New York. Now why, on the day before this vessel got up steam to depart, were those two Parrott guns removed, if she was to be continued in the same mercantile and commercial voyages as before? That is a significant fact, going to the intent of the parties.

[Cites tenth section of the act of 1818.]

why, at this

I ask your Honor to take this into consideration, peculiar crisis in the affairs of this vessel, did the owners remove from her this armament? Why, if these guns remained on board, bonds to double the amount of the vessel would have to be given to the United States, to prevent her cruising against the commerce of nations at peace with the United States. I say why was this done? Your Honor must take this fact in connection with the other evidence in the case, and see what the intent of these par

ties was in disposing of that vessel. If your Honor please, here was a vessel never altered; never changed, although she had been more than two years out of this service. Why, at this peculiar crisis of the vessel, did this significant change take place? I only ask your Honor to consider that, in connection with the rest of the evidence on the question of intent. Then you have the evidence that she was to be taken to Panama, and given over to Kimball, the "fighting captain." We have the evidence of negotiations for fitting out torpedo boats, to blow up the Spanish navy. You have the refusal of Mackenna to answer questions, on the plea that they would criminate himself. If he had nothing to do with the purpose of fitting out this vessel to aid the Chilian government against Spain, it was a simple matter, as an honest man, for him to answer; but he declined to do so.

MR. EVARTS. What person can you name, on the evidence, as guilty under the act?

MR. COURTNEY. I claim that is not necessary; that the forfeiture of this vessel is entirely distinct from the question of the criminal indictment or prosecution of the persons engaged in her fitting out or furnishing.

I submit to your Honor that it does not require any such amount of testimony (as my learned friend supposes) to work a forfeiture of this vessel as it would to convict parties tried criminally before a jury, because it is well settled, and has been held repeatedly, in cases of forfeiture, that, when strong suspicion and probable cause is shown, it becomes the duty of the party charged to clear his skirts from the charge made against him. In other words, the onus changes. My learned friend asks me who are liable in this case as persons engaged in fitting out or furnishing this vessel? and I say the evidence shows conclusively that Mackenna, Nichols, Rogers, Cary, Wright, and every one of these parties was more or less concerned in the unlawful fitting out and furnishing of this vessel.

JUDGE NELSON. That is a very weak point in your case, because it seems that all there was, was merely negotiations for the sale of the vessel, and that you have magnified it into a fitting out and furnishing.

MR. COURTNEY. or an offer for sale.

Your Honor can term it a negotiation for sale
The question is, whether this vessel was fur-

nished or delivered or offered, with the intent to have her cruise against the commerce of Spain. I do not care whether they negotiated for the sale, or sold her, or what they did. There is no evidence before the Court whether she was sold or not. The question is, whether this conspiracy between them for an unlawful purpose was such a violation of the act as to forfeit the vessel. My learned friend asks me what Mr. Forbes did? Why was he upon the vessel that afternoon when she steamed up and was ready to sail? MR. EVARTS. It was his vessel.

MR. COURTNEY. I tell your Honor you have a right to infer that Mr. Forbes went on with the documents in his carpet-bag for the purpose of carrying out these negotiations, and delivering over the vessel to some one outside of Sandy Hook. He had the power to prove it, if it was not so. Why this talk with Captain Nichols on the ferry-boat, if the thing was fair and honest? Why tell him not to talk so loud before people?

very

Now this question of sale I do not propose to discuss. It is fully argued in the brief submitted by Mr. Webster. I have merely to say, in this connection, that, although the sale of contraband of war to a belligerent may, in certain cases, be permitted by the law of nations, whatever that law may be on that subject, it is made subservient to the law of the United States; and this case is one of specific intent. Your Honor will take the papers, and you will find, when you come to look at the case of the United States vs. Quincy, that it holds just the contrary of the doctrine contended for by the learned counsel. You will find, in the opinion of Judge Betts, a review of that case, coming to the conclusion I do in regard to the real intention and meaning of that decision.

Now, if your Honor please, I desire to say nothing further in this case. It is one, in my opinion, involving a principle of great importance to the commercial enterprise and interests of the City of New York as well as of the whole country. It is, I must confess, to a certain extent, a new question. It is one which has given rise to a good deal of comment and discussion, pro and con, by various members of the Bar; and I believe your Honor will give this case that careful examination which not only its importance as a legal question demands, but also the vast interests of the owners well as the government amount to in this case.

as

MR. EVARTS. I will ask your Honor's attention to Dana's note on this subject, to Wheaton's International Law, which is, I believe, taking it throughout, a perfect digest both of the legal and political topics and authorities, and scarcely requiring any one to know or listen to anything except what is in it,- page 536, note 215.

4

T

ARGUMENT OF MR. EVARTS.*

INTRODUCTION.

this statute, and the measure

If the Court please, this trial, which has been so long before your Honor, is, I believe, the first trial for the condemnation of a vessel, to which guilt, under the Neutrality Act, was imputed by the government, which has been had under either of the Acts of Congress, whether of the earlier legislation of 1794 and 1797 or the later of 1817 and 1818. In two other forms of investigation one direct and the other collateral of guilt under it, have been made a subject of discussion at the bar and of determination by the judiciary. The one of direct investigation has been upon indictments against individuals duly charged by the Grand Inquest with the crime declared by this statute, and, before a Court and jury, subjected to trial. The collateral inquiries, and those which have attracted the most attention of the publicists and the most discussion in political and diplomatic relations, have been the cases where prizes have been brought into our Courts by cruisers in the actual service of one belligerent, during a flagrant war, and the government of the other belligerent, or its citizens, have interposed an objection to the retention of these prizes as duly made within belligerent rights, upon the allegation that the cruisers making the captures have been fitted out in our ports, with warlike equipments, and with an intent of the hostile cruiser (which was carried out, as proved by the capture of the prizes) against the provisions of our Neutrality Act, in violation or in fraud of our neutrality. And it was thereupon claimed that our government should vindicate, through its courts, the maintenance of our neutrality, by taking from the offending cruiser its prey, and delivering it to its rightful owners. Thus stood, in some half-dozen cases, this subject, as matter of judicial investigation and determi* This argument, though delivered in the court below, was submitted also on appeal, and is therefore inserted in this place. - EDITOR.