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THE CASE OF THE STEAMSHIP METEOR.

HEARING UPON APPEAL.

Circuit Court of the United States for the Southern District of New York,
WEDNESDAY, November 20, 1867.

BEFORE HON. JUSTICE NELSON.

SAMUEL G. COURTNEY, ESQ., U. S. Dist. Attorney,

appeared for the United States, Appellees.

WM. M. EVARTS, Esq. appeared for the claimants, Appellants.

MR. COURTNEY. This is an appeal, if your Honor please, from a decree made by the District Court of the Southern District of New York, directing a condemnation of the steamship Meteor. The decree was made by Judge Betts some time last summer. An appeal has been taken from that decree to this Court.

It appears, from the papers, that upon information filed with the District Attorney of the United States, for this District, in January, 1866, a libel was filed against the steamship Meteor, which was charged with a violation of the neutrality laws. That information was filed, I think, in January, 1866. It was subsequently amended, and the answer of the claimants was duly filed, and an answer put in showing the ownership of the vessel, and denying all the material allegations in the libel. Exceptions were subsequently filed to that claim. The cause was duly noticed for trial, and, upon direction of his Honor Judge Betts, the exceptions, as well as the cause upon the merits, were tried at the same time by the Court. The Judge, in trying the question of exceptions, declined to pass upon them until the whole case was disposed of. It will appear from the case that the Judge, in trying the exceptions, expressly confined the evidence to the question of ownership, leaving the other matter, upon the merits, to be disposed of as the cause. progressed.

The libel, if your Honor please, was filed under the Act of Congress, which will be found in the 3d Volume of the Statutes at Large, page 448, Section 3, which reads as follows:

"And be it further enacted, That if any person 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."

Statutes, and under the law of
The cause being at issue, tes-
Court, which occupied several

It was under that section of the Congress, that this libel was filed. timony was duly taken before the days; and without taking up the time of your Honor in reading this mass of testimony in detail, I shall refer you merely to what I consider the material parts of the testimony bearing upon the question at issue between the parties. And in referring your Honor to the testimony, I shall omit entirely the testimony taken upon the question of the exceptions, as I don't think they have much bearing upon this case. They merely prove ownership. JUDGE NELSON. Does your brief refer to the evidence? MR. COURTNEY. Yes, sir.

MR. EVARTS. The evidence upon the subject-matter of proof is not very extensive. I think you need to be informed of it before we can discuss the case, which is very much a matter of fact.

MR. COURTNEY referred the Court to the testimony of William Jarvis, Vol. I. pp. 105-107; testimony of T. H. Sease, Deputy Marshal, ib. pp. 107, 108; pp. 111, 112; pp. 112, 113, being the letter of Mr. Forbes to Frederick C. Schmidt, dated Boston, Sept. 13, 1865; p. 113, the certificate of Mr. Seward as to war between Chile and Spain; testimony of B. V. Mac

kenna, ib. pp. 114-120; of Louis J. Kirk, ib. pp. 120-123; of Charles L. Wright, ib. pp. 125–128; p. 130 to the end of direct examination. Mr. Evarts reads the cross-examination, and Mr. Courtney read the re-direct. Also the testimony of Mackenna (recalled), ib. pp. 145-155. Also of Daniel J. Hunter, ib. pp. 145-148. Also of Ronald McNichols, ib. p. 155 et seq. Also of Julius Conkling, ib. p. 180 et seq.

MR. COURTNEY. If your Honor please, that is all the testimony taken in the case, and I shall proceed to ask an affirmance of the decree of the Court below. I shall do so in as brief a manner as possible, using as my argument, mainly, the opinion given by Judge Betts, which puts it in a better manner than I can do.

JUDGE NELSON. What arms and ammunition were on board? MR. EVARTS. Nothing but a few carbines, referred to. The guns that had been on board were stored on shore, with all the ammunition, except some boxes of shot, and five or six boxes of ammunition, that were overlooked, and left on board.

JUDGE NELSON. The difficulty in my mind is, that these owners had a right to sell the ship, and the government must make out that she has been fitted and equipped for a military or naval expedition. There seems to be a total absence of any munitions of war on board, and no ship can be taken to a foreign port without coal and other stores; so that the mere fact of stores being on board of her, and being put on board, is certainly no evidence. to implicate her as being fitted out and intended for a naval enterprise against any power, unless there is on board a naval equip

ment.

MR. EVARTS. There is this further hardship, that all this naval adaptability or capacity of the ship, which might have been an injurious circumstance to found proof upon, was done with a view to be used for our government, and was well known to have had no connection with the sale.

MR. COURTNEY. If any person shall attempt to fit out, or arm, or procure to be fitted out or armed, or shall knowingly be concerned in fitting out or arming of any vessel, etc.

JUDGE NELSON. Not fitting out and arming. It must be an arming or fitting out for war purposes.

MR. EVARTS. Yes, the statute goes on: "With intent that she shall be used to commit hostilities."

MR. COURTNEY. You could furnish a vessel at Brooklyn, intended for hostile purposes, and fit her out outside of Sandy Hook, according to that.

JUDGE NELSON. But you must make that out. I shall not presume it.

MR. COURTNEY. We say she was condemned because the owners knowingly furnished her.

JUDGE NELSON. You must prove that. I do not see any evidence of that fitting out. I agree that if the agents of a hostile government should make a contract to build a ship for service in war, then suspicion would commence in the origin of the contract, and very slight circumstances might go to make out the purpose and the intent. But here this vessel was built as a war vessel for our own government; she had been engaged in the service of the government, and on the termination of the war our government no longer required the use of her. In that condition the owners had a right to sell her; and, therefore, having that right, the mere fact that stores were put on board of her that were necessary to convey or transfer her abroad to the persons to whom she was sold forms no ground of suspicion at all; because the right to sell carried with it the right to put on board these provisions and stores. In order to make out that there was a hostile purpose intended, as an expedition against a country with which we were at peace, in violation of this law, you must show there was some fitting out, in the military or naval sense, with intent to commit this hostile act against a government with which we were at peace.

MR. COURTNEY. That is what we think we have made out in this case.

JUDGE NELSON. That is the trouble. I do not see that you have made out anything. No munitions of war on board, and no evidence that any were to be put on board.

MR. EVARTS. Nor was a stroke of work done by us to make her adaptable to war purposes.

MR. COURTNEY. She was a vessel fitted out for warlike purposes. MR. EVARTS. The statute says, "Any one who fits out a vessel to serve one belligerent against another," etc.

MR. COURTNEY. The statute says an owner concerned in furnishing.

JUDGE NELSON. You confound the furnishing of stores and

supplies. There was nothing illegal in that, nothing in the act to forbid it. You must connect this with the military or naval expedition; which you have not done.

MR. EVARTS. Suppose an armed ship of either of the belligerents had come in here, although our statute forbids any recruiting, such vessel could have taken provisions and coal without violating our Neutrality Act.

JUDGE NELSON. I do not see any breach of the act, either in fact or by way of intention, in fitting out this vessel. I cannot decide this case on conjecture or suspicion. You must show some evidence. I have attended to all that has been read with great care, and I have been waiting for you to show any naval equipment, either in fact or intention.

MR. COURTNEY. I do not know what your Honor means by naval equipment. If you expect us to show that this vessel was armed to the teeth, we cannot do it. We show that the vessel was fitted out and suitable for war purposes; we show her in the possession of these parties. We show her for sale; we show, by the letter of Mr. Forbes, the capacity of the vessel for warlike purposes. JUDGE NELSON. She was built for that purpose.

MR. COURTNEY. That purpose was past, and you have her here therefore suitable for war purposes. We find negotiations going on with certain parties; we find the agent of the owners negotiating with Wright, the broker, for a transfer of the vessel to Chile. There is not a particle of evidence showing any bona fide voyage or commercial enterprise. We show the furnishing of her by putting in a large amount of coal, and by the hiring of men.

MR. EVARTS. There is no hiring of men proved here.

MR. COURTNEY. We show an immense amount of coal and a large amount of provisions. There is nothing here showing that this boat was intended for any commercial voyage whatever. We show these negotiations between the parties being concerned for the furnishing of vessels for hostile purposes. I contend that it was not necessary to put a single gun on the vessel at Brooklyn, if she was fitted for warlike purposes, and furnished here with coal and provisions. The offence was complete. All that was necessary was, to take her outside of Sandy Hook and complete her.

JUDGE NELSON. Do you say that this vessel could not be sold to the Chilian government?

MR. COURTNEY. No, I do not.

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