The Three Friends/Opinion of the Court

by Melville Fuller

United States Supreme Court

166 U.S. 1

The Three Friends

It is objected that the decree was not final, but, inasmuch as the libel was ordered to stand dismissed if not amended within 10 days, the prosecution of the appeal, within that time, was an election to waive the right to amend, and the decree of dismissal took effect immediately.

In admiralty cases, among others enumerated, the decree of the circuit court of appeals is made final in that court by the terms of section 6 of the judiciary act of March 3, 1891; but this court may require any such case, by certiorari or otherwise, to be certified 'for its review and determination with the same power and authority in the case as if it had been carried by appeal or writ of error to the supreme court,'-that is, as if it had been brought directly from the district or the circuit court. 26 Stat. 826, c. 517, § 6.

Accordingly, the writ of certiorari may be issued in such cases to the circuit court of appeals, pending action by that court; and, although this is a power not ordinarily to be exercised (American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U.S. 372, 385, 13 Sup. Ct. 758), we were of opinion that the circumstances justified the allowance of the writ in this instance, and the case is properly before us.

We agree with the district judge that the contention that forfeiture under section 5283 depends upon the conviction of a person or persons for doing the acts denounced is untenable. The suit is a civil suit in rem for the condemnation of the vessel only, and is not a criminal prosecution. The two proceedings are wholly independent, and pursued in different courts, and the result in each might be different. Indeed, forfeiture might be decreed if the proof showed the prohibited acts were committed, though lacking as to the identity of the particular person by whom they were committed. The Palmyra, 12 Wheat. 1; The Ambrose Light, 25 Fed. 408; The Meteor, 17 Fed. Cas. 178.

The Palmyra was a case of a libel of information against the vessel to forfeit her for a piratical aggression, under certain acts of congress which made no provision for the personal punishment of the offenders; but it was held that, even if such provision had been made, conviction would not have been necessary to the enforcement of forfeiture. And Mr. Justice Story, delivering the opinion, said: 'It is well known that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture did not, strictly speaking, attach in rem, but it was a part, or at least a consequence, of the judgment of conviction. It is plain from this statement that no right to the goods and chattels of the felon could be acquired by the crown by the mere commission on the offense, but the right attached only by the conviction of the offender. The necessary result was that, in every case where the crown sought to recover such goods and chattels, it was indispensable to establish its right by producing the record of the judgment of conviction. In the contemplation of the common law, the offender's right was not devested until the conviction. But this doctrine never was applied to seizures and forfeitures, created by statute, in rem, cognizable on the revenue side of the exchequer. The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing; and this whether the offense be malum prohibitum or malum in se. The same principle applies to proceedings in rem on seizures in the admiralty. Many cases exist where the forfeiture for acts done attaches solely in rem, and there is no accompanying penalty in personam. Many cases exist where there is both a forfeiture in rem and a personal penalty. But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other. But the practice has been, and so this court understands the law to be, that the proceeding in rem stands independent of, and wholly unaffected by, any criminal proceeding in personam.' And see The Malek Adhel, 2 How. 210; U.S. v. The Little Charles, 1 Brock. 347, Fed. Cas. No. 15,612.

The libel alleged that the vessel was 'furnished, fitted out, and armed with intent that she should be employed in the service of a certain people, to wit, certain people then engaged gaged in armed resistance to the government of the king of Spain, in the Island of Cuba, to cruise and commit hostilities against the subjects, citizens, and property of the king of Spain in the Island of Cuba, with whom the United States are and were at that date at peace.'

The learned district judge held that this was insufficient under section 5283, because it was not alleged 'that said vessel had been fitted out with intent that she be employed in the service of a foreign prince or state, or of any colony, district, or people recognized as such by the political power of the United States.'

In Wiborg v. U.S., 163 U.S. 632, 16 Sup. Ct. 1127, 1197, which was an indictment under section 5286, we referred to the 11 sections, from 5281 to 5291, inclusive, which constitute title 67 of the Revised Statutes, and said: 'The statute was undoubtedly designed in general to secure neutrality in wars between two other nations, or between contending parties recognized as belligerents, but its operation is not necessarily dependent on the existence of such state of belligerency;' and the consideration of the present case, arising under section 5283, confirms us in the view thus expressed.

It is true that, in giving a r esum e of the sections, we referred to section 5283 as dealing 'with fitting out and arming vessels in this country in favor of one foreign power as against another foreign power with which we are at peace'; but that was matter of general description, and the entire scope of the section was not required to be indicated.

The title is headed 'Neutrality,' and usually called, by way of convenience, the 'Neutrality Act,' as the term 'Foreign Enlistment Act' is applied to the analogous British statute, but this does not operate as a restriction.

Neutrality, strictly speaking, consists in abstinence from any participation in a public, private, or civil war, and in impartiality of conduct towards both parties; but the maintenance unbroken of peaceful relations between two powers when the domestic peace of one of them is disturbed is not neutrality in the sense in which the word is used when the disturbance has acquired such head as to have demanded the recognition of belligerency. And, as mere matter of municipal administration, no nation can permit unauthorized acts of war within its territory in infraction of its sovereignty, while good faith towards friendly nations requires their prevention.

Hence, as Mr. Attorney General Hoar pointed out (13 Op. Attys. Gen. U.S. 178), though the principal object of the act was 'to secure the performance of the duty of the United States, under the law of nations, as a neutral nation in respect of foreign powers,' the act is, nevertheless, an act 'to punish certain offenses against the United States by fines, imprisonment, and forfeitures, and the act itself defines the precise nature of those offenses.'

These sections were brought forward from the act of April 20, 1818 (3 Stat. 447, c. 88), 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,' which was derived from the act of June 5, 1794 (1 Stat. 381, c. 50), entitled 'An act in addition to the 'Act for the punishment of certain crimes against the United States," and the act of March 3, 1817 (3 Stat. 370, c. 58), entitled 'An act more effectually to preserve the neutral relations of the United States.'

The piracy act of March 3, 1819 (3 Stat. 510, c. 77; Rev. St. §§ 4293-4296, 5368), supplemented the acts of 1817 and 1818.

The act of 1794, which has been generally recognized as the first instance of municipal legislation in support of the obligations of neutrality, and a remarkable advance in the development of international law, was recommended to congress by President Washington in his annual address on December 3, 1793, was drawn by Hamilton, and passed the senate by the casting vote of Vice President Adams. Ann. 3d Cong. 11, 67. Its enactment grew out of the proceedings of the then French minister, which called forth President Washington's proclamation of neutrality in the spring of 1793. And though the law of nations had been declared by Chief Justice Jay, in his charge to the grand jury at Richmond, May 22, 1793 (Whart. St. Tr. 46, 56, Fed. Cas. No. 6,360), and by Mr. Justice Wilson, Mr. Justice Iredell, and Judge Peters, on the trial of Henfield in July of that year (Id. 66, 84), to be capable of being enforced in the courts of the United States criminally, as well as civilly, without further legislation, yet it was deemed advisable to pass the act in view of controversy over that position, and, moreover, in order to provide a comprehensive code in prevention of acts by individuals within our jurisdiction inconsistent with our own authority, as well as hostile to friendly powers.

Section 5283 of the Revised Statutes is as follows:

'Every person who, within the limits of the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out, or arming, of any vessel with intent that such 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 freign prince or state, or of any colony, district, or people, with whom the United States are at peace, or who issues or delivers a commission within the territory or jurisdiction of the United States, for any vessel, to the intent that she may be so employed, 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 vessel, 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.'

By referring to section 3 of the act of June 5, 1794, section 1 of the act of 1817, and section 3 of the act of 1818, which are given in the margin, ^[1] it will be seen that the words 'or of any colony, district, or people' were inserted in the original law by the act of 1817, carried forward by the act of 1818, and so into section 5283.

The immediate occasion of the passage of the act of March 3, 1817, appears to have been a communication, under date of December 20, 1816, from the Portuguese minister to Mr. Monroe, then secretary of state, informing him of the fitting out of privateers at Baltimore to act against Portugal, in case it should turn out that that government was at war with the 'self-styled government of Buenos Ayres,' and soliciting 'the proposition to congress of such provisions of law as will prevent such attempts for the future.' On December 26, 1816, President Madison sent a special message to congress, in which he referred to the inefficacy of existing laws 'to prevent violations of the obligations of the United States as a nation at peace towards belligerent parties and other unlawful acts on the high seas by armed vessels equipped within the waters of the United States,' and, 'with a view to maintain more effectually the respect due to the laws, to the character, and to the neutral and pacific relations of the United States,' recommended further legislative provisions. This message was transmitted to the minister December 27th, and he was promptly officially informed of the passage of the act in the succeeding month of March. Geneva Arbitration Case, United States, 138. In Mr. Dana's elaborate note to section 439 of his edition of Wheaton's International Law, it is said that the words 'colony, district, or people' were inserted on the suggestion of the Spanish minister that the South American provinces in revolt, and not recognized as independent, might not be included in the word 'state.' Under the circumstances, this act was entitled as 'to preserve the neutral relations of the United States,' while the title of the act of 1794 described it as 'in addition' to the crimes act of April 30, 1790 (1 Stat. 112, c. 9), and the act of 1818 was entitled in the same way. But there is nothing in all this to indicate that the words 'colony, district, or people' had reference solely to communities whose belligerency had been recognized, and the history of the times (an interesting review of which has been furnished us by the industry of counsel) does not sustain the view that insurgent districts or bodies, unrecognized as belligerents, were not intended to be embraced. On the contrary, the reasonable conclusion is that the insertion of the words 'district or people' should be attributed to the intention to include such bodies, as, for instance, the so-called 'Oriental Republic of Artigas,' and the governments of Petion and Christophe, whose attitude had been passed on by the courts of New York more than a year before, in Gelston v. Hoyt, 13 Johns. 141, 561, which was then pending in this court on writ of error. There was no reason why they should not have been included, and it is to the extended enumeration as covering revolutionary bodies laying claim to rights of sovereignty, whether recognized or unrecognized, that Chief Justice Marshall manifestly referred in saying, in The Gran Para, 7 Wheat. 471, 489, that the act of 1817 'adapts the previous laws to the actual situation of the world.' At all events, congress imposed no limitation on the words 'colony, district, or people,' by requiring political rec ognition.

Of course, a political community whose independence has been recognized is a 'state' under the act; and, if a body embarked in a revolutionary political movement, whose independence has not been, but whose belligerency has been, recognized, is also embraced by that term, then the words 'colony, district, or people,' instead of being limited to a political community which has been recognized as a belligerent, must necessarily be held applicable to a body of insurgents associated together in a common political enterprise, and carrying on hostilities against the parent country, in the effort to achieve independence, although recognition of belligerency has not been accorded.

And as, agreeably to the principles of international law and the reason of the thing, the recognition of belligerency, while not conferring all the rights of an independent state, concedes to the government recognized the rights, and imposes upon it the obligations, of an independent state in matters relating to the war being waged, no adequate ground is perceived for holding that acts in aid of such a government are not in aid of a state, in the sense of the statute.

Contemporaneous decisions are not to the contrary, though they throw no special light upon the precise question.

Gelston v. Hoyt, 3 Wheat. 246, decided at February term, 1818 (and below, January and February, 1816), was an action of trespass against the collector and surveyor of the port of New York for seizing the ship American Eagle, her tackle, apparel, etc. The seizure was made July 10, 1810, by order of President Madison under section 3 of the act of 1794, corresponding to section 5283. The ship was intended for the service of Petion against Christophe, who had divided the Island of Hayti between them, and were engaged in a bloody contest, but whose belligerency had not been recognized. It was held that the service of 'any foreign prince or state' imported a prince or state which had been recognized by the government, and, as there was no recognition in any manner, the question whether the recognition of the belligerency of a de facto sovereignty would bring it within those words did not arise.

The case of The Estrella, 4 Wheat. 298, involved the capture of the Venezuelan privateer on April 24, 1817. There was a recapture by an American vessel, ane the prize thus came before the court at New Orleans for adjudication. The privateer was found to have a regular commission from Bolivar, issued as early as 1816, but it had violated section 2 of the act of 1794, which is the same as section 2 of the act of 1818, omitting the words 'colony, district, or people' (and is now section 5282 of the Revised Statutes), by enlisting men at New Orleans, provided Venezuela was a state within the meaning of that act. The decision proceeded on the ground that Venezuela was to be so regarded on the theory that recognition of belligerency made the belligerent to that intent a state.

In The Nueva Anna and Liebre, 6 Wheat. 193, the record of a prize court at 'Galveztown,' constituted under the authority of the 'Mexican republic,' was offered in proof, and this court refused to recognize the belligerent right claimed, because our government had not acknowledged 'the existence of any Mexican republic or state at war with Spain'; and in The Gran Para, 7 Wheat. 471, Chief Justice Marshall referred to Buenos Ayres as a state, within the meaning of the act of 1794.

Even if the word 'state,' as previously employed, admitted of a less liberal signification, why should the meaning of the words 'colony, district, or people' be confined only to parties recognized as belligerent? Neither of these words is used as equivalent to the word 'state,' for they were added to enlarge the scope of a statute which already contained that word. The statute does not say 'foreign colony, district, or people,' nor was it necessary, for the reference is to that which is part of the dominion of a foreign prince or state, though acting in hostility to such prince or state. Nor are the words apt if confined to a belligerent. As argued by counsel for the government, an insurgent colony under the act is the same before as after the recognition of belligerency, as shown by the instance of the colonies of Buenos Ayres and Paraguay, the belligerency of one having been recognized, but not of the other, while the statute was plainly applicable to both. Nor is 'district' an appropriate designation of a recognized power de facto, since such a power would represent, not the territory actually held, but the territory covered by the claim of sovereignty. And the word 'people,' when not used as the equivalent of 'state' or 'nation,' must apply to a body of persons less than a state or nation; and this meaning would be satisfied by considering it as applicable to any consolidated political body.

In U.S. v. Quincy, 6 Pet. 445, 467, an indictment under the third section of the act of 1818, the court disposed of the following, among other, points, thus:

'The last instruction or opinion asked on the part of the defendant was that, according to the evidence in the cause, the United Provinces of Rio de la Plata is, and was at the time of the offense alleged in the indictment, a government, acknowledged by the United States, and thus was a 'state,' and not a 'people,' within the meaning of the act of congress under which the defendant 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 indictment charges that the defendant was concerned in fitting out the Bolivar, with intent that she 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. It was in evidence that the United Provinces of Rio de ia Plata had been regularly acknowledged as an independent nation by the executive department of the government of the United States, before the year 1827; and therefore it is argued that the word 'people' is not properly applicable to that nation or power.

'The objection is one purely technical, and we think not well founded. The word 'people,' as here used, is merely descriptive of the power in whose service the vessel was intended to be employed; and it is one of the denominations applied by the act of congress to a foreign power. The words are 'in the service of any foreign prince or state, or of any colony, district, or people.' The application of the word 'people' is rendered sufficiently certain by what follows under the videlicet, 'that is to say, the United Provinces of Rio de la Plata.' This particularizes that which by the word 'people' is left too general. The descriptions are no way repugnant or inconsistent with each other, and may well stand together. That which comes under the videlicet only serves to explain what is doubtful and obscure in the word 'people."

All that was decided was that any obscurity in the word 'people,' as applied to a recognized government, was cured by the videlicet.

Nesbitt v. Lushington, 4 Term R. 783, was an action on a policy of insurance in the usual form, and among the perils insured against were 'pirates, rovers, thieves,' and 'arrests, restraints, and detainments of all kings, princes, and people, of what nation, condition, or quality soever.' The vessel with a cargo of corn was driven into a port, and was seized by a mob, who assumed the government of her, and forced the captain to sell the corn at a low price. It was ruled that this was a loss by pirates, and the maxim, 'Noscitur a sociis,' was applied by Lord Kenyon and Mr. Justice Buller. Mr. Justice Buller said: "People' means 'the supreme power'; 'the power of the country,' whatever it may be. This appears clear from another part of the policy; for, where the underwriters insure against the wrongful acts of individuals, they describe them by the names of 'pirates, rogues, thieves.' Then, having stated all the individual persons against whose acts they engage, they mention other risks,-those occasioned by the acts of 'kings, princes, and people of what nation, condition, or quality soever.' Those words, therefore, must apply to 'nations' in their collective capacity.'

As remarked in the brief of Messrs. Richard H. Dana, Jr., and Horace Gray, Jr., filed by Mr. Cushing in Mauran v. Insurance Co., 6 Wall. 1, the words were 'doubtless originally inserted with the view of enumerating all possible forms of government, monarchical, aristocratical, and democratic.'

The British foreign enlistment act (59 Geo. III. c. 69) was bottomed on the act of 1818, and the seventh section, the opening portion of which is given below, ^[2] corresponded to the third section of that act. Its terms were, however, considerably broader and left less to construction. But we think the words 'colony, district, or people' must be treated as equally comprehensive in their bearing here.

In the case of The Salvador, L. R. 3 P. C. 218, the Salvador had been seized under warrant of the governor of the Bahama Islands, and proceeded against in the vice admiralty court there for breach of that section, and was, upon the hearing of the cause, ordered to be restored; the court not being satisfied that the vessel was engaged, within the meaning of the section, in aiding parties in insurrection against a foreign government, as such parties did not assume to exercise the powers of government over any portion of the territory of such government. This decision was overruled on appeal by the judicial committee of the privy council, and Lord Cairns, delivering the opinion, said: 'It is to be observed that this part of the section is in the alternative. The ship may be employed in the service of a foreign prince, state, or potentate, or foreign state, colony, province, or part of any province or people; that is to say, if you find any consolidated body in the foreign state, whether it be the potentate, who has the absolute dominion, or the government, or a part of the province or of the people, or the whole of the province or the people acting for themselves, that is sufficient. But, by way of alternative, it is suggested that there may be a case where, although you cannot say that the province, or the people, or a part of the province or people, are employing the ship, there yet may be some person or persons who may be exercising, or assuming to exercise, powers of government in the foreign colony or state, drawing the whole of the material aid for the hostile proceedings from abroad; and therefore, by way of alternative, it is stated to be sufficient if you find the ship prepared or acting in the service of 'any person or persons exercising, or assuming to exercise, any powers of government in or over any foreign state, colony, province, or part of any province or people'; but that alternative need not be resorted to if you find the ship is fitted out and armed for the purpose of being 'employed in the service of any foreign state or people, or part of any province or people.' * * *

'It may be (it is not necessary to decide whether it is or not) that you could not state who were the person or persons, or that there were any person or persons, exercising, or assuming to exercise, powers of government in Cuba, in opposition to the Spanish authorities. That may be so. Their lordships express no opinion upon that subject, but they will assume that there might be a difficulty in bringing the case within that second alternative of the section; but their lordships are clearly of opinion that there is no difficulty in bringing the case under the first alternative of the section, because their lordships find these propositions established beyond all doubt: There was an insurrection in the island of Cuba; there were insurgents who had formed themselves into a body of people acting together, undertaking and conducting hostilities; these insurgents, beyond all doubt, formed part of the province or people of Cuba; and, beyond all doubt, the ship in question was to be employed, and was employed, in connection with and in the service of this body of insurgents.'

We regard these observations as entirely apposite, and while the word 'people' may mean the entire body of the inhabitants of a state, or the state or nation collectively in its political capacity, or the ruling power of the country, its meaning in this branch of the section, taken in connection with the words 'colony' and 'district,' covers, in our judgment, any insurgent or insurrectionary 'body of people acting together, undertaking and conducting hostilities,' although its belligerency has not been recognized. Nor is this view otherwise than confirmed by the use made of the same words in the succeeding part of the sentence, for they are there employed in another connection; that is, in relation to the cruising or the commission of 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,' and, as thus used, are affected by obviously different considerations. If the necessity of recognition in respect of the objects of hostilities, by sea or land, were conceded, that would not involve the concession of such necessity in respect of those for whose service the vessel isfitted out.

Any other conclusion rests on the unreasonable assumption that the act is to remain ineffectual unless the government incurs the restraints and liabilities incident to an acknowledgment of belligerency. On the one hand, pecuniary demands, reprisals, or even war may be the consequence of failure in the performance of obligations towards a friendly power, while on the other the recognition of belligerency involves the rights of blockade, visitation, search, and seizure of contraband articles on the high seas, and abandonment of claims for reparation on account of damages suffered by our citizens from the prevalence of warfare.

No intention to circumscribe the means of avoiding the one by imposing as a condition the acceptance of the contingencies of the other can be imputed.

Belligerency is recognized when a political struggle has attained a certain magnitude, and affects the interests of the recognizing power; and, in the instance of maritime operations, recognition may be compelled, or the vessels of the insurgents, if molesting third parties, may be pursued as pirates. The Ambrose Light, 25 Fed. 408; 3 Whart. Int. Law, § 381, and authorities cited.

But it belongs to the political department to determine when belligerency shall be recognized, and its action must be accepted according to the terms and intention expressed.

The distinction between recognition of belligerency and recognition of a condition of political revolt-between recognition of the existence of war in a material sense and of war in a legal sense-is sharply illustrated by the case before us; for here the political department has not recognized the existence of a de facto belligerent power engaged in hostility with Spain, but has recognized the existence of insurrectionary warfare prevailing before, at the time, and since this forfeiture is alleged to have been incurred.

On June 12, 1895, a formal proclamation was issued by the president, and countersigned by the secretary of state, informing the people of the United States that the Island of Cuba was 'the seat of serious civil disturbances, accompanied by armed resistance to the authority of the established government of Spain, a power with which the United States are and desire to remain on terms of peace and amity'; declaring that 'the laws of the United States prohibit their citizens, as well as all others being within and subject to their jurisdiction, from taking part in such disturbances adversely to such established government, by accepting or exercising commissions for warlike service against it, by enlistment or procuring others to enlist for such service, by fitting out or arming, or procuring to be fitted out and armed, ships of war for such service, by augmenting the force of any ship of war engaged in such service and arriving in a port of the United States, and by setting on foot or providing or preparing the means for military enterprises to be carried on from the United States against the territory of such government'; and admonishing all such citizens and other persons to abstain from any violation of these laws.

In his annual message of December 2, 1895, the president said: 'Cuba is again gravely disturbed. An insurrection, in some respects more active than the last preceding revolt, which continued from 1868 to 1878, now exists in a large part of the eastern interior of the island, menacing even some populations on the coast. Besides deranging the commercial exchanges of the island, of which our country takes the predominant share, this flagrant condition of hostilities, by arousing sentimental sympathy and inciting adventurous support among our people, has entailed earnest effort on the part of this government to enforce obedience to our neutrality laws, and to prevent the territory of the United States from being abused as a vantage ground from which to aid those in arms against Spanish sovereignty.

'Whatever may be the traditional sympathy of our countrymen as individuals with a people who seem to be struggling for larger autonomy and greater freedom, deepened as such sympathy naturally must be in behalf of our neighbors, yet the plain duty of their government is to observe in good faith the recognized obligations of international relationship. The performance of this duty should not be made more difficult by a disregard on the part of our citizens of the obligations growing out of their allegiance to their country, which should restrain them from violating as individuals the neutrality which the nation of which they are members is bound to observe in its relations to friendly sovereign states. Though neither the warmth of our people's sympathy with the Cuban insurgents, nor our loss and material damage consequent upon the futile endeavors thus far made to restore peace and order, nor any shock our humane sensibilities may have received from the cruelties which appear to especially characterize this sanguinary and fiercely conducted war, have in the least shaken the determination of the government to honestly fulfill every international obligation, yet it is to be earnestly hoped, on every ground, that the devastation of armed conflict may speedily be stayed, and order and quiet restored to the distracted island, bringing in their train the activity and thrift of peaceful pursuits.'

July 27, 1896, a further proclamation was promulgated, and in the annual message of December 7, 1896, the president called attention to the fact that 'the insurrection in Cuba still continues with all its perplexities,' and gave an extended review of the situation.

We are thus judicially informed of the existence of an actual conflict of arms in resistance of the authority of a government with which the United States are on terms of peace and amity, although acknowledgment of the insurgents as belligerents by the political department has not taken place; and it cannot be doubted that, this being so, the act in question is applicable.

We see no justification for importing into section 5283 words which it does not contain, and which would make its operation depend upon the recognition of belligerency; and, while the libel might have been drawn with somewhat greater precision, we are of opinion that it should not have been dismissed.

This conclusion brings us to consider whether the vessel ought to have been released on bond and stipulation.

It is provided by section 938 of the Revised Statutes that:

'Upon the prayer of any claimant to the court, that any vessel, goods, wares, or merchandise, seized and prosecuted under any law respecting the revenue from imports or tonnage, or the registering and recording, or the enrolling and licensing of vessels, or any part thereof, should be delivered to him, the court shall appoint three proper persons to appraise such property, who shall be sworn in open court, or before a commissioner appointed,' etc. 'If, on the return of the appraisement, the claimant, with one or more sureties, to be approved by the court, shall execute a bond to the United States,' etc., 'the court shall, by rule, order such vessel, goods, wares, or merchandise to be delivered to such claimant. * * *'

Section 939 provides for the sale of vessels 'condemned by virtue of any law respecting the revenue from imports or tonnage, or the registering and recording, or the enrolling and licensing of vessels, and for which bond shall not have been given by the claimant. * * *'

Section 940 authorizes the judges to do in vacation everything that they could do in term time in regard to bonding and sales, and to 'exercise every other incidental power necessary to the complete execution of the authority herein granted.'

'When a warrant of arrest or other process in rem is issued in any cause of admiralty jurisdiction, except the cases of seizure for forfeiture under any law of the United States, the marshal shall stay the execution of such process, or discharge the property arrested if the process has been levied, on receiving from the claimant of the property a bond or stipulation in double the amount claimed by the libellant, with sufficient surety, to be approved by the judge,' etc.

By section 917 this court may prescribe rules of practice in admiralty 'in any manner not inconsistent with any law of the United States.'

Rule 10, as thus prescribed, provides for the sale of perishable articles or their delivery upon security to 'abide by and pay the money awarded by the final decree.'

'In like manner, where any ship shall be arrested, the same may, upon the application of the claimant, be delivered to him upon a due appraisement, to be had under the direction of the court, upon the claimant's depositing in court so much money as the court shall order, or upon his giving a stipulation, with sureties, as aforesaid; and if the claimant shall decline any such application, then the court may, in its discretion, upon the application of either party, upon due cause shown, order a sale of such ship, and the proceeds thereof to be brought into court or otherwise disposed of, as it may deem most for the benefit of all concerned.'

In The Mary N. Hogan, 17 Fed. 813, Judge Brown, of the Southern district of New York, refused to deliver the vessel on stipulation, and, referring to rule 11, said that it was not in form imperative in all cases, but left to the court a discretion which might be rightly exercised under peculiar circumstances; and that the rule clearly should not be applied where the object of the suit was 'not the enforcement of any money demand, nor to secure any payment of damages, but to take possession of and forfeit the vessel herself in order to prevent her departure upon an unlawful expedition in violation of the neutrality laws of the United States.' And he added: 'It is clearly not the intention of section 5283, in imposing a forfeiture, to accept the value of the vessel as the price of a hostile expedition against a friendly power, which might entail a hundredfold greater liabilities on the part of the government. No unnecessary interpretation of the rules should be adopted which would permit that result; and yet such might be the result, and even the expected result, of a release of the vessel on bond. The plain intent of section 5283 is effectually to prevent any such expedition altogether, through the seizure and forfeiture of the vessel herself. The government is therefore entitled to retain her in custody, and rule 11 cannot be properly applied to such a case.'

In The Alligator (decided in 1812) 1 Gall. 145, Fed. Cas. No. 248, Mr. Justice Story referred to an invariable practice, in all proper cases of seizure, to take bonds for the property whenever application was made by the claimant for the purpose, but that was a case where the claimant had been allowed to give bond without objection, and was attempting to avoid payment by alleging its irregularity; and in The Struggle (1813) 1 Gall. 476, Fed. Cas. No. 13,550, the same eminent judge, in making a similar ruling, said: 'That, where the claimant voluntarily accepts a delivery on bail, it is an estoppel of his right to contest the validity of the security.'

But in section 941 of the Revised Statutes the exception was introduced of 'cases of seizure for forfeiture under any law of the United States'; and it seems obvious that the release on bond of a vessel charged with liability to forfeiture under section 5283, before answer or hearing, and against the objection of the United States, could not have been contemplated. However, as this application was not based upon absolute right, but addressed to the sound discretion of the court, it is enough to hold that, under the circumstances of this case, the vessel should not have been released as it was, and should be recalled on the ground that the order of release was improvidently made. U.S. v. Ames, 99 U.S. 39, 41, 43. If the vessel is held without probable cause, her owners can recover demurrage; and, moreover, vessels so situated are frequently allowed to pursue their ordinary avocations whild in custody pending suit, under proper supervision, and in order to prevent hardship.

The decree must be reversed, and the cause remanded to the district court, with directions to resume custody of the vessel, and proceed with the case in conformity with this opinion.

Ordered accordingly.

Notes

1. Act June 5, 1794: 'Sec. 3. That if any person shall within any of the ports, harbors, bays, rivers or other waters 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 to cruise or commit hostilities upon the subjects, citizens or property of another foreign prince or state 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 such person so offending shall upon conviction be adjudged guilty of a high misdemeanor, and shall be fined and imprisoned at the discretion of the court in which the conviction shall be had, so as the fine to be imposed shall in no case be more than five thousand dollars and the term of imprisonment shall not exceed 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 any person who shall give information of the offense, and the other half to the use of the United States.'
2. That if any person, within any part of the United Kingdon, or in any part of his majesty's dominions beyond the seas, shall, without the leave and license of his majesty for that purpose first had and obtained as aforesaid, equip, furnish, fit out or arm, or attempt or endeavor to equip, furnish, fit out or arm, or procure to be equipped, furnished, fitted out or armed, or shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out or arming of any ship or vessel with intent or in order that such ship or vessel shall be employed in the service of any foreign prince, state or potentate, or of any foreign colony, province or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of government in or over any foreign state, colony, province or part of any province or people, as a transport or storeship, or with intent to cruise or commit hostilities against any prince, state or potentate, or against the subjects or citizens of any prince, state or potentate, or against the persons exercising or assuming to exercise the powers of government in any colony, province or part of any province or country, or against the inhabitants of any foreign colony, province or part of any province or country, with whom his majesty shall not then be at war; or shall, within the United Kingdom, or any of his majesty's dominions, or in any settlement, colony, territory, island or place belonging or subject to his majesty, issue or deliver any commission for any ship or vessel, to the intent that such ship or vessel shall be employed as aforesaid, etc.