uNlTEDSTATES V.

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99

et

UNITED' STATES 'l1.TRU1fBULL

at

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(Dr.8trtctOO'Urt, S. D.,OaU!ornw. November 8,1891.)

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J!tEU'l'BALITY LAws-F,URNJSHING ARKS 'l'O FOREIGN 1NSURGBNT-"FITTING OUT" ,.. ,

VB8-

Rav. St. U. S. § 52Ba,' prescribing a punishment for any person who is in any way concerned in "furnishing, fitting out, or arming" any vessel with intent that she snall QEl employed in toe !l<llrvice of any foreign state or peoplfl to crUise or commit hostilities against any foreign state or people with whom the United StllteS are at peace,l1oes not cover the act, of purchasing arms anq munitions of wal", and putting them on boaI'd a veflst>l sent to receive them, with intent that they shall be carried to a party of insurgents in a foreign country, to used in carrying on war against tbe government thereof, but which are not designed to constitute any part of flttingsor furnishings of the vessel herself.

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SAME-SETTING ON FOOT EXPEDITION-WHAT CONSTITUTES.

When a party of insurgents, already and carrying on war againstthQ government of a foreign country, send a vessel to procure arms and ammunitiQn jn the United· StatAs, the act of such arms and ammunition, and placing them on board the vessel, is not within the llCOpf) of S. § 5286, presoribing a punishment for every person who, within the limits or jurisdiction of the United States', begins or sets on foot, or provides or prepares the means for, any military expedition or enterprise, "to be oarried on from thence. "

At Law. Indictment of Trumbull and Burt for violation of neu· trality laws. " .' ,W. Cole, U. S. Atty., and .Akxa,nder CampbeU and.A. W. Hutton, Special Asst. U. S. Attys. Page &: EeU8, M. White, $ond GerYrge J. Denis, for defendants. Ross, J. The indictment in this case contains 11 counts, the first 4 of which, in effect, charge that on ,the 9th day of May, 1891, at a cer· tain designated place in this judicial district, near the island of San Clemente, the defendants unlawfully attempted to fit out and arm, fitted out and armed, procured to be fitted out and armed, and were know· ingly concerned in furnishing,' fitting out, and arming, a certain steamship called the" Itata," which was then and there in the possession and under the control of certain citizens of the republic of Chili, known as the "Congressional Party," an.d who were then and there, in said repub. lic, organized and banded together in great num bers in armed rebellion and attempted revolution, and carrying on war against the republic of Chili, and the government thereof, with which the United States then and at the time of the finding of the indictment were at peace, with intent that said ship should be employed in the service of the aforesaid Congressional Party, to cruise or commit hostilities against the then established and recognized government of Chili, with which this govemment then was at peace, contrary ta the provisions of section 5283 of the Revised Statutes of the United States, which section 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 knowfngly is concerned in the, furnishing, fitting or arming of, any vessel, with intent that such vessel shall be employed in the service of any foreign llrince or state. or of any colool. district, 'Or people, to cruise or com-

100

FEDERAL

vol. 48.

mit hostilities against the suhjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States Bre at peace, or who issues and delivers a commission within t»e territory or jurisdiction of the United States, fOl' any vessel, to the intent that she shall be so employed, shall be deemed guUty of a high misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years, And every such vassel, her ,tackle, apparel, and furniture, together with all materials, arms, ammunitipJl' and stores, which rna>' have been procured for the building or equipment,thereof, shall be fol'feited, one-half to the use of the informer, and the other half to the use of the United States." The n.e'Xt three counts of the indi,ctment, in effect, charge that the defendapts,at the saIDe time and place, increased, unlawfully procured to be increased, and were knowingly concerned in increasing, the force of a certain ship of war and armed called "Itata," which arrived aM,hepart of San Diego in this judicial district on the 2d day of May, 1891; and was at we time of her said arrival, and to and including the 9th day of May, 1891, (during which time she remained within the jurisdictic>nof the United States and of. this court,} a ship of war in the service of a certain foreign people called the" Congressional Party," then citizens of and residing in the republic of Chili, andwho were then and there banded together in large numbers, in open armed rebellion, and attempted forcible revolution, aud making war against, an,d being at war with,' a certain foreign state, namely,the republic of Chili., and the ll,twful government thereof, with the United States then, and at the finding '6£ the indictment, were at 'peace, by a:ddingto the force of said armed vessel an equipment solely applicable to war, viz" by adding to her etlllipinent 10,OOOrifies, 10,000 bayonets, and 500,000 cartridges therefo'!', contrary to the:provisi'oW3 section 5285 'of the Revised Statutes ofthe United Statds;' Which is' as follows': " ' petsonwho, within 'the'territ6ryor 'jurisdiction oithe United States, increases"or augments,' or procures to' be increased or augmented, or know'the force' of any ship of war, ingly'isooncetned in increasing cruiser;. or other armed vessel, which; at the'time of her:'arri val within the was a fihip of Waf,: Ox, cruiser, or armed ves.sel, in the service or state, or of,/1<pF,C()lony, district. 01' people, or belongof any of any l'!qch prince or stllte, colony, district, or people., the same tieing at war with any foreign prince or state, or of any colony. district, or people, withwhorrithe United States are at peace, by adding guns d'f such vessel, or by changing those on board of to the nUllJberof· her foc guns, of'a larger caliber, or by adding thereto any equipment solelyapplicable'l.owar, shall 06 deemed guilty of a high roislH::IDeanor, and shall be fined nO,t,mQl',e than one thousand dollars, and imprisoned not more than one year." I'.

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The:last four counts of the indictment,. in effect, charge that the defendants, at the same time and place, began, set on ,foot, prc>vided the means for, and prepared the rneansfor, a certain military expedition'to be'carried on fram thence agaihst the territory and· dominions of a foreign sbite, namely, th,e republic ofClliIi',---theDnited States then and there, and at the of of indictment, being at with

UNITED STATES fl. TRUMBULL.

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said repubIic,-contrary to the provisions of section 5286 of the Revised Statutes of the United States, which is as follows:
"Every person who, within the territory of the United States, begins or sets on foot, or provides or prepares 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, shall be deemed guilty of a high misdemeanor, and shall 'be fined not exceeding three thousand dollars, and imprisoned not more than three years...

The evidence introduced by the United States in support of the indictment being concluded, the court is asked by the defendants to direct the jury to return a verdict of not guilty, on the ground that the evidence introduced on the part orthe prosecut,ionis iniSufficientto sustain any count of the indictment. For the purposes of the motion, every fact that t4eevidence tends to establish must, of course, be considered as proven. Briefly stated, those facts are as follows: In January of this year the steam-ship !tata was an ordinary merchant vessel. Early in that month she was captured in the harbor of Valparaiso, Chili, by the people designated in this indictment as the "Congressional Party," and who were then engaged in an effort to overthrow the then established and recognized government of Chili, of which Balmaceda was the head. The Itatawas by the Congressional Party put in command of one of its officers, and. was. used in their undertaking asa transport to convey troops, provisions, and munitions of war, and also as an hospital ship, and one in which to confine pri8011ers. Four small cannon were also put upon her decks, and she carried· a jack and pennant. Some time prio!: to the following April the defendant Trumbull came to the United States as an agent of thE! Congressional Party, and about the month of April went to the of New York, and there bought from one of the large meroan. tile ;firmspf that city. dealing in such matters, 5,000 rifles and 2,000,:, 000 cartridges therefor, with the intention and for the purpose of sending them to the Congressional Party in Chili for use in their effort to overthrow the Balmacedan government. The sale and purchase of the arms and ammunition were made in the usual course of trade. Trumbull caused them to be shipped by rail to San Francisco, and engaged the defendant .Burt to accompany them, which he did. Arrangements had been made by Trumbull with his principals in Chili, by which they were to send a vessel to the United States to get the arms and ammunition, !lnd convey them to Chili for the use of the Congressional Party there. The Itata was dispatched by that party for that purpose, and was accompanied as far as Cape San Lucas by the Esmeralda. a war ship then in the service of the Congressional Party. At one of theChiliall ports the !tata took on board some soldiers, with their arms, by one witness stated to be about 150, and by another to be about 12, in number. At San Lucas the captain of the Esmeralda took command of the Itata, and captain ofthe latter was left there in command of the

102

FEDERAL BJl:PORTER,

vol. 48.

The.H;litathen proceeded to San Diego, really in command ,ofthe Esmeralda's captain, but ostensibly in command of another, who represented to the custOp.1!3 officers at that pprt,that she was an ordinary merchantman,and was bound to some port on the northern coast. Before coming into the port of San Diego, or into the waters of the United States, the Itata hauled down her jack and pennant, the cannon theretofore car- · tied on her decks were removed'li.n,d stowed in her hold, as were also the arm$ of the soldiers she carried; 'and their uniforms, 'as well as those of the officers, were removed, and all appeared in civilian's dress. At that port ahe laid in stores of coal and provisions, all ofwhich were bought in the open market,:and some of which were marked "Esmeralda." Meanwhile Trumbull had chartered a schooner, called the "Robert and Minnie," in San Francisco to take the arms and ammunition from there to a point in this judicial district 1 then expected to be near the island of Catalina, where she could meet: the Itata, and deliver them on board of her to be conveyed to Chili for the purposes already stated. The schooner Robert and Minnie accor.clingly took on board the arms and ammunition at the port of San Francisco 1 and, in charge of the defendant Burt, proceeded to the neighborhood of Catalina island, where she expected to meet the Itata. In the mean time the suspicion of some of the officers of the United States that the neutrality laws were being violated was aroused 1 and the marshal of this district was directed by the attorney general to detain the Hata, if such was found to be the casei and, acting upon those and certain instructions from the district attorney of this judicial district, he went on board the ship at San Diego, and put a keeper in charge of hel', and then went in search olthe Robert and Minnie, which he did not ,find in the waters of the United States. Communication was, however, had between the !tata and the schooner, and a point nearSan Clemente island was fixed upon as the place of meeting for the purpose of translerring the arms and ammunition from the schooner to the ship. Accordingly 1 the ltata, on the 6th day of May, 1891, without obtaining clearance papers, and against the protest of the person left on board and in charge of her by the marshal, weighed anchor, and steamed out of the harbor of San Diego, with him on board, to meet the Robert and Minnie and receive the arms and ammunition. The marshal's keeper was, huwever, put ashore at Point Ballast, before leaving the harbor. While steaming out of it, one or more of the Hata's cannon were brought on deck, and some of the soldiers on board of her appeared in uniform. On the 9th of May the ltata and Robert and Minnie came together about a mile llnd a half southerly of San Clemente island, and there the armS and amlDunition in question were taken from the schooner,and put on board the ship in original packages, and the latter at once left with them for Chili. No evidence was introduced tending to show that the Congressional Party ever received any' recognition. of any character from the government of the United States until September 4th, when it was recognized as the established and only government of Chili. But' since the argu-

UNITED STATES V. TRUMBULL.

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ment and submission of the motion the counsel for the United States have called the attention of the court to the following facts furnished by the respective departments, to-wit: On March 4th, the secretary of the navy cabled Admiral McCann "to proceed to Valparaiso, and observe strict neutrality, and take no part in troubles between parties further than to protect American interests." On March 26th, the secretary of the navy cabled Admiral Brown, who had superseded Admiral McCann, "to abstain from proceedings in nature of assistance to either, that is, the Balmaceda or Congressional Party; that the ships of the latter were not to be treated as piratical, so long as they waged war only against the Balmaceda government." On April 25th, Secretary of State Blaine· cabled the American minister, "You can act as mediator with Brazilian minister and French charge d'affaires." On May 5th, Minister Egan cabled this government, "Government of Chili and revolutionists have accepted mediation of the United States, Brazil, and Fra'1ce most cordially; those of England and Germany declined." On May 7th, Acting Secretary of State Wharton acknowledged the dispatch of Minister Egan, arid "expressed hope that through combined efforts of the governments in question the strife which has been going on in Chili may be speedily and happily terminuted." On May 14th, Acting Secretary of State Wharton cabled Minister Egan that" French minister reports threats to shoot the insurgent envoys by Balmaceda, "and directed that they should have ordinary treatment under flag of truce. The foregoing· are the facts of the case as now presented, and the question the court is called upon to decide is whether they are sufficient to justify a verdict against the deftmdants under any count of the indictment. The counsel for the United States concede that they are in,. sufficient to justify a verdict against the defendants under either of the counts that are based on section 5285 of the Revised Statutes. It seems to me the same thing iseqrially true in respect to those counts that are based on section 5286. The very terms of that statute imply that the military expeditions or enterprises thereby prohibited are such as originate within the limits of the United States, and are to be carried on from this country. "Every person who, within the limits or jurisdiction of the United States, begins or sets on foot, or provides or prepares the means for,any military expedition or enterprise, to be carried on from thence, "-that is to lIay, from the United States,-is the language oithe statute. If the evidence' shows that in this case there ever was any military expedition begun or set on foot, or provided or prepared for, within the sense of this statute, it was begun, set on foot, provided and prepared for in Chili,and was to be carried on from Chili, and not from the United StateR. But I think it perfectly clear that the sending of a ship from Chili to the United States, to take on board arms and ammunition purchased in this country, and carry them back to Chili, is not the. beginning; setting on foot, providing or preparing the means for any military expedition or enterprise, within the meaning of section. 5286 of the Revised Statutes. The cases of The Mary A. Hogan, 18 Fed. Rep. 529j U. S. v.<'J.IwoBwndred and Fourteen Boxes of Arms, etc., 20 l!'ed. Rep.

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FEDERAL REPORTER,

vol. 48.,

50; and U. S.;v;;Ra,n8,j 17 Fed. Rep. 142,-citcd by counsel for the United Statel> inc support of their position in respect to this point,-do not at all supportit. In each of those cases there was a military expedition, and it was organized within, started from, and was to be carried on from the United States. 'fhe facts of those cases are wholly different from the facts, of. the present case. There remaiil for consideration the four counts of the indictment that are based on section 5283 of the, Revised Statutes. The first of these, as has been seen, charges that the defendants, on the 9th day of May last, at a certain designated place within this judicial district, unlawfully fitted out and,armed a certain called the "Itata," which was then and there in the possession' and under the control of certain citizens of the republic of Chili, known as the "Congressional Party," and who were then and there, in said republic, organi:r.ed and banded together in great numbers in' armed rebellion and attempted revolution, and carrying on war against the republic of Chili and the government thereof, with which the United States then, and at the time of the finding of the indictment,were at peace, with intent that said ship should be employed in the service of the aforesaid Congressional Party, to 'cruise or commit and recognized government of hostilities against the then Ohili, with which this'government then was at peace. The secoild count charges ,that the defendants, at the same time and place, attempted to do the same thing; the third count charges that, at the same time and place, they unlawfully procured the same, thing to be done; and the fourth that, at the same time and place, defendants were" unlawfully and knowingly ,concerned in the furnishing, fitting out, and arming" of the Itata, with intent, etc, It is contended on behalf of the defendants that section 5283 has no application to this case, for the reason that the people designated in the indictment as the "Congressional Party" do not constitute a people, within the meaning of that section. It is beyond question that the Btat'U8 of the people composing the Congressional Party at the time of the oommission of the alleged offense is to be regarded by the court as it was then regarded by the political or executive department of the United States. This doctrine is firmly established. .GelBton v. Hoyt 3 Wheat. 246, 324; U. S. v. Palmer, ,Id. 610, 635; Kennett v. Chambers, 14 How. 38; Whart. Int. Law Dig. pp. 551, 552, and cases there cited. If the dispatches from the secretary of the navy, the secretary of state, and acting secretary of state, already referred to, are to be considered as indicating the light in which the people composing the Congressional Party of Chili were regarded by the executive department of this government prior to their recognition, on the 4th of September, the position of the United States towards them seems to have been similar to that taken by the Uniled States towards the insurgents against Hayti in 1869. That position was thus stated by :Mr. Fish, then secretary of state, in a letter dated September 14, 1869: .. (1) That we do not dispute Ithe'right of the government of Hayti to treat the officers and crew of the Quaker City and Florida (vessels in the'sel'viceof
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UNITED STATES V. TRUMBULL.

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the insurgents against Hayti) as pirates for all intents and purposes. How they are to be regarded by their own legitimate, government is a question of municipal law, into which we have no occasion, if we had the right, to enter. (2) That this government is not aware of any reason which would require or justify it in looking upon the vessel named in a different light from any other vessel employed in the service of the insurgents. (3) 'rhat, regarding them simply as atmed cruisers of the insurgents, not yet acknowledged by this government to have attained bellig-erent rights, it is competent to the United States to deny and resist the exercise by those vessels, or any other agents of the rebellion, of the privileges which attend maritime war, in respect to our citizens or their property entitled to their protection. We may or may not, at our option, as justice or policy may require. treat them as pirates in the absolute and unqualified sense, or we may, as the circumstances of any actual case shall suggest, waive the extreme right, and recognize, where facts war.. rant it, an actual intent, on the part of the individual offenders, not to'depredate in Bcriminal sense and for private gain, but to capture and destroy jU1'C belli. It sufficient for the present purpose that the United states will. not admit any commission or authority proceeding from rebelil asa justification or excuse for inj ury to persons or property entitled to" tbe protection of' this government. Theywm not tolerate' the search or stopping, by cruisers in the rebt>! service, of vessels of the United States. nor any other act which is only privih'ged 'by recognized belligerency. (4) While asserting the right to caPture Bnd destroy,the vessels in question, and others of similar if any aggression upon persons or property entitled to the protection. of thi,s government shall recomme!'ld such action, we cannot admit the existence of any obligation to do so in the interest of Hayti or of the general sec IIrityof commerce." 3 Whart. Int. Law Dig. pp. 465, 466. Does section 5283 of the Revised Statutes apply to any people whom it is optional with the United States to treat as pirates? That section is found in the chapter headed "Neutrality," and it was carried into the Revised Statutes, and was originally enacted in furtherance of the obligations of the nation as a neutral. The very idea of neutrality imports that the neutral will treat each contending party alike; that it will accord no right or privilege to one that it withholds from the other, and will withhold none from one that it accords to the other. In the case of U. S. v. Quincy; 6 Pet. 445, the supreme court of the United States said that the word "people," in the 3d section of the act of April 20, 1818, (and from that carried into the Revised Statutes as section 5283,) "is one of the denominations applied by the act of congress to a foreign powel1." rrhis can hardly mean an association of people in no way recognized by the United States, or by the government against which they are rebelling, whose rebellion has not attained the dignity of war, and who may, at the option of the United States, be treated by them as pirates. Prior to the passage of the act of April 20, 1818, the supreme court of the United States, in the, case of Ge18ton v. Hoyt, 3 Wheat, 246, speakin!!: through MI'. Justice STORY, held that section 3 of the act of 1794, prohibiting the fitting out any.ship, etc., for the service of any foreign prince or state, to 9rui,se against the subjects,etc., of any foreign prince orsmte, with wqich lpeVnited States were at peace, did not apply to any new government, unless it had ,been recognized by the United States, or by the government of the country to which such new country belonged j and

106

F.EDERAL REPORTER, vol. 48. '

that; plea which set' up a forfeiture under that act, in fitting out a ship to cruiee against such new state, must aver suoh recognition, or it is bad. 1818, by which the Congress, inpllssing the tQ" of the act of 1794 was, in substance, re-enacted, knpwn the construction, thllthad been theretomust be prqsuIlied to fore put by the supreme court upon the words "pl'inceor state" in the act of 1794, and with that knowledge, in passing the act of 1818, inserted "colony, district, or people." This was in the same clause done, according'to Dana's Wheat. lut Law, § 439,note 215, and Wharton's Int. Law DIg. p..561,upon th,esuggestionofthe Spanish minister that the South Americ.anprovinqes then in revolt, and not recognized as independent, might not be in,cluded in the word '\state." But in every one of those instances itheUnited' States had acknowledged the existence of a state of war, 81'id,asa consequence, the belligerent rights of the provinces. The Ambrose Light, 25' Fed·· Rep. 414,' and references there the court, in: case of Gelston v. Hoyt., did 'not say that, the independence of the new government must have been-recognized by the United States to make the statute of which it was spellking applicable. There are different kinds or degrees of reebut, it sai<l'that; in passing an act in furtherance of theobligati()nsf,){ the natron' neutral, congress was legiRlating with reference to a people not in any way rE!cognized by the government of the United States, and whom it might, at its option, treat as within the statute/, said Judge,.BRowN in the case of The Carondeld, 37 Fed. Rep. 800," the vesselxntlst be intended to be employed in the service' of one foreign prince, statE!, colony , district, or people, tocl'uiseor commit hostilities against the subjects, citizens, or propertyofanother. with which the United States are ':at peace.' The United States can,hardly be said to be' at peace/in the sense of the statute, with a faction which they are unwilling to recognize as a government; nor could the cruising or committing of hostilities against su.ch a mere faction well be said to be committing hostilities against the' subjects, citizens, or property of a district or people,' within the meaning of the statute. So, on the other hand, a vessel, in entering the service of the opposite faction of Hippolyte, .could hardly be said to enter the service of a foreign' prince or state, or ofa colony, district, or people,' unless our government had recognized: Hippoly,te's faction as at least constituting a belligerent, which it does not appear to have done." Attorney General Hoar, however, in a letter to Mr. Fish, secretary of state, of date December 16, 1869, (13 Op.Atty. Gen. U. S! 177,) said: "Undoubtedly the ordmary application of the statute [in question] is to cases where the United States its neutrality in wars between two other nations, or where PQth.parties to a contest hlwe been recogas belligerents; thl)t is,as baYing j\ suffieiently organized political existencetoenable them to 'carryon war;,' But the. statute is not confined'in its terms,nor, as it seems to me, in its scope and proper effect, to such C8SI,>S. ttMer it, any persons who are insurgents; or engaged in what would beregardedu!lder our law as levyingwar:against:tbe sovereign power of the ua·

made." ".' ',,' ,It will be

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tion, though few in number and, occupying however small a territory, might prol;ure the fitting out and arming of:vessels with intent to commit hostili· ties,against a nation with which we were at peace, and with intent that they should be employed in tht! service of a · colony, distl'ict, 01' people' not waging a I,"ecognized war."

The attention of Attorney General Hoar does not appear to have been attracted to the decisions of the supreme court and other cases above cited, nor are any authorities cited in support of the views expressed by him." In my opinion, it is, to say the least, extremely doubtful whether sectioI;l5283 of the Revised Statutes applies to the present case. But, assUming that it does, the evidence does not sustain the charges based upon it It does not show, or tend to show, that the defendants, or either of them, attempted to do, or procured to be done, or were concerned in doing, anything that they did not in fact do. What the evidence shows that they did do has already been stated. If none of those acts constitl1ted the arming, fitting out, or furnishing the Hata with the intent that she should be employed to cruise or commit hostilities against the then established government of Chili, it necessarily follows that the prosecution has failed to prove the case allel?;ed against the defendants, and the motion made on their behalf should be granted. One of the counsel for the United States conceded, on the argument, that the evidence ig insufficient to show that the defendants fitted out and armed the Itata, but he contended strenuously that it is sufficient to show that they were knowingly concerned in" furnishing" her. Of course, if he is right in the. concession. it results that the first count is not established by proof; and,since the evidence' does not tend to show that the defendants, or either of them, attempted to do, or procured to be done, anything they did not in fact do, the second and third counts would also fall. If, as is thus conceded, and as seems to me to be clear, the putting on board the ltata of the arms and ammunition, under the circumstances and for the purposes stated, did not constitute the fitting out and arm" ing of that vessel, it is difficult to understand how the same acts, committedunderthe same circumstances and for the same purposes, constituted the "furnishing" of her. There is nothing in the evidence tending to show that any of the arms or ammunition were intended for use by the !tata.. On the contrary. the whole case shows that the defendants caused them to be put on board of her with the intention that she should transport. them to Chili for the use of the insurrectionary party there. This dbesnot constitute the fitting out, arming. or furnishing of the Itatn, witbintent that she should be employed to cruise or commit hostilities in the service of the insurrectionary party against the then government of Chili. 'In principle, the case is, 1 think, much like that of The Fiorida, deCided by Judge BLATCHFORD in 1871, and reported in 4 Ben; ;452. That was a suit against the Florida for an alleged forfeiture incurred under the thirdsectibn'of the act of April 20, 181S,'nol'V. in substance, section 5283 of the Revised Statutes. The court said:
"Admitting that persons acting as agents of the insurrectionary party in Cubawllre the real owners of the vessel and her cargo of arms and mUlli-

108

FEDERAL REPORTER,

vol. 48.

tions of. war, and that the transaction of the borrowing, by Darr from Castillo, of the money wherewith the vessel and her cargo were purchased, was a sham, and that the vessel was to proceed with her cargo to Vera Cruz, and there vessel and cargo wereto be transferred by Darr, their nominal owner, to persons acting for the insurrectionary party in Cuba, and that thence the vessel was to take the cargo to some point off the coast of Cuba, and land it on the shore by the use of rafts made out of the lumber on board, towed by the steam-launch on board, through shallow water, to the shore. and that Darr and such real owners of the vessel and cargo had an intent to do all this in fitting out tpe vessel, and putting her cargo on board, still a violation of the third sectionof the act of Hl1Sis not thereby made out. A vessellitted out with intent to do this is not fitted out with intent to cruise or commit hostilities. witbirtthe sellse of that section. If so, then every vessel litted out to run a: blockade, with a cargo 'of munitions (if war, is necessarily fitted ont, within the sense of that section, to commit hostilities against the country whose forces have instituted the blockade. * * ... Thereis no satisfactory eviden,ce, that the vessel was furnished fitted outorarllled, or attempted to))e furnished 01' fitted out or armed. with intent be employed to'cl;uise or commit in the Sense of the third sec,tion of the act;'in'tl1e services of the insurrectionary party in Cuba, against the government of'Spain. There is no'evidetice that she was intended to do anything more than transport her cargo to 'the coast of Cuba, and Clause it to be landed there on rafts, 1;1, the aid of thfil launch on board. To'do this was no violation of the third ,section of the act. which is the one on which the libel is founded."
> ' ,

In, a lEltte.r ,from Attorney General Speed to Mr. Seward, then secretary of state, he sa,id: "I knowofnQ, law or regulation which forbids any person or government. whether the be r,eal or assumed, from purchasing arms from the of the United Stat!!s, and shipping them at, the risk of the purchaser." 11 Op. Atty. Gen. p. S. 452. , The fact that'secrecy and were resorted to in the present mlse, as was lIlsodon.e in the case of ,The Florida, cannot. bring it within the purviem of the statute, if not otherwise within it; nor, can the circumstance that the !tata, in leaving the port of Sap Diego in the manner disclosed by the evidence, violated other provisions of law. The case alleged must', of course, be proved; otherwise the defendants are entitled to a verdict of not guilty. views expressed, it becomes unnecessary to decide what effect, if any,. should ,otherwise be given in this case to the recogniti<m by the United States, on the 4th of September, of the government established by the Congressional Party, or to determine other questions raise(l, aU of which have been elaborately and very ably argued , The!lvidence on behalf of the prosecution being, in my opiqion, insufficient to warrant a conviction under either count of the indictment,the motion made on behalf of the defendants is granted, and thEdury are instructed to find a, verdict of not guilty.

STANDARt> OIL CO.

'I!.

SOUTHERN PAC. R. CO.

109

et al.)

(STANDARD OIL

eo.

v.

SOUTHtRN PAC.

R.

CO.

'Oircuit Oourt, N. D. OalilJ'om'la. October 12. 1891.)
PATENTS FOR Il'rVENTIONS-COMBINATION-OlIr(JARS.

Letters patent No. 216,506, issued JuneJ.7, 1879, to M. C. Brown, for an improve.ment in cars, consisting in a division of the car into two or more parts, some of which shall be constructed as tanks for carryinlS oil, while others are .fitted for ordinary merchandise, the object being to carry such m.erchandiseon the return trip, and thus obviate the necessity for haulng empty oil·cars for long distances, are void for want of patentable combination.

In Equity. Pill¥bu7)Y Oc Blandi.ng and .Langhorne Oc Miller, for complainant. JoJm,,·S. Boone and S. O. Denson, for respondents.
'HA:WLEY, J. This is'8, bill in equity for the. infringement of letters patent'No. 216,506,gtarlted to M. Ca!DpbeIl Brown, June 17, 1879; to complairiant, for" in oil-cars." Thespeciticationin the patent reyites as follows: ' . . . ":My invention relates to.cars, and especially to that class of cars,designed for transporting merchandise and oil or other liquid8, and it consists. in .the pnrtsand: combination of parts hereinafter described and claimed. oils or other liq uids maybe safely transported in' the saIDe car with miscelIane· ()US merchandise. * * * The object, as briefly'above stated. of my device, is toproouce an improved form of car for the transportation of oils.andliquids in bulk, and which shall also be adapted for the transportation of ordinary mer· ehandise on roads where a load of oil ,or liqUid cannot be obtained on ret.urn trip, thus obviating the necessity of hauling empty over long dis-tances,as is now commonly done; and to this end the construction of the or· dinaryfrmght-car is modified as follows: The car space is divided into two 01' more compartmeIlls; but, for the purpose of the present specification, we will suppose it to be divided into three. The central compartment, as shown in the drawings, wonld embrace about two-thirds of .theentire length oLthe ear, and is designed and adapted for oIdinary storage, and for this purpose may be constructed in any proper manner. The two end eupy each about one-sixth of the entire length of the car, are located ill the ends thereof, over the trucks, and are designed aud constructed'to contain metalllc'tanks, * ... * which tanksl/o.re ildapted for safely containing and tl'ansportinK oil or other liquid. * * ... I am aware that the several featuresembodied in my improvement are not independently new, and I restrict the invention to the specific combination of parts set forth in the claim. What 1claim is: A car subdivided into two or more compartments, each end eompartment containing an oil-tank; said tank constructed with an inclined or. self-draining bottom, resting upon a floor, formed in counterpart thereto; said. tank also haVing a tapering or inclined toP. with a filling opening placed at or near its highest point, and in line with a filling opening hi the car-top, and there being a removable partition, separating said tank from the next adjacent compartment, all combined as substantially set fortb." , Is this invention a mere'aggregation, or is it a patentable combination? What is the distinction between mere aggregation and a patentable combination? Acornbination of 'well-known separate elements, each of wbiah. when cotubined, operates separately and in its old way, and in whioh· no