United States v. Quincy - 31 U.S. 445 (1832)


U.S. Supreme Court

United States v. Quincy, 31 U.S. 6 Pet. 445 445 (1832)

United States v. Quincy

31 U.S. (6 Pet.) 445

ON CERTIFICATE OF DIVISION OF OPINION BY THE JUDGES OF THE

CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MARYLAND

Syllabus

Indictments under the third section of the Act for the punishment of certain crimes against the United States, &c., passed April 20, 1810. The indictment charged the defendant with being knowingly concerned in fitting out, in the port of Baltimore, a vessel with intent to employ her in the service of a foreign "people," the United Provinces of Buenos Ayres, against the subjects of the Emperor of Brazil, with whom the United States was at peace. The vessel went from Baltimore to St. Thomas, and was there fully armed. She afterwards cruised under the Buenos Ayrean flag. To bring the defendant within the words of the act, it is not necessary to charge him with being concerned in fitting out "and" arming the vessel; the words of the act are "fitting out or' arming." Either will constitute the offense. It is sufficient if the indictment charges the offense in the words of the act.

It is true that with respect to those who have been denominated at the bar the chief actors, the law would seem to make it necessary that they should be charged with fitting out "and" arming. The words may require that both shall concur, and the vessel be put in a condition to commit hostilities in order to bring her within the law, but an attempt to fit out "and" arm is made an offense. This is certainly doing something short of a complete fitting out and arming.

To attempt to do an act does not, either in law or in common parlance, imply a completion of the act or any definite progress towards it. Any effort or endeavor to effect it will satisfy the terms of the law. It is not necessary that the vessel, when she left Baltimore for St. Thomas and during the voyage from Baltimore to St. Thomas, was armed or in a condition to commit hostilities in order to find the defendant guilty of the offense charged in the indictment.

The defense consists principally in the intention with which the preparations to commit hostilities were made. These preparations, according to the very terms of the act, must be made within the limits of the United States, and it is equally necessary that the intention with respect to the employment of the vessel should be formed before she leaves the United States. And this must be a fixed intention, not conditional or contingent depending on some future arrangements. This intention is a question belonging exclusively to the jury to decide. It is the material point on which the legality or criminality of the act must turn, and decides whether the adventure is of a commercial or a warlike character.

The law does not prohibit armed vessels belonging to citizens of the United States from sailing out of our ports; it only requires the owners to give security that such vessels shall not be employed by them to commit hostilities against foreign powers at peace with the United States.

The collectors are not authorized to detain vessels, although manifestly built for warlike purposes and about to depart from the United States, unless circumstances shall render it probable that such vessels are intended to be employed by the owners to commit hostilities against some foreign power at peace with the United States. All the latitude, therefore, necessary for commercial purposes is given to our citizens, and they are restrained only from such acts as are calculated to involve the country in war.

If the defendant was knowingly concerned in fitting out the vessel within the

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United States with intent that she should be employed to commit hostilities against a state or prince or people at peace with the United States, that intention, being defeated by what might afterwards take place in the West Indies, would not purge the offense, which was previously consummated. It is not necessary that the design or intention should be carried into execution in order to constitute the offense.

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 la Plata had been regularly acknowledged as an independent nation by the executive department of the government of the United States before the year 1827. It was argued that the word "people" is not applicable to that nation or power. By the Court:

"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."

An indictment was found against the defendant in that court at May term, 1829, founded on the third section of the Act of Congress, passed April 20, 1818, 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."

The third section provides:

"That if any person shall, 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 is at peace, or shall issue or deliver a commission within the territory or jurisdiction of the United States for any ship or vessel with the intent that she may be employed as aforesaid, every person so offending shall be guilty of a high misdemeanor and shall be fined not more than $10,000 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

Page 31 U. S. 447

equipment thereof shall be forfeited, one-half to the use of the informer and the other half to the use of the United States."

The indictment contained fifteen counts, upon two only of which evidence was given, and the questions upon which the judges of the circuit court were divided in opinion arose on those counts and on the evidence in reference to the matters stated in them. They were the 12th and 13th counts.

"12. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said John D. Quincy, on the day and year aforesaid, at the district aforesaid, within the limits of the United States and within the jurisdiction of the United States and of this Court, with force and arms, was knowingly concerned in the fitting out of a certain vessel called the Bolivar, otherwise called Las Damas Argentinas, with intent that such vessel 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,' to commit hostilities against the subjects of a foreign prince, that is to say against the subjects of 'his imperial Majesty, the constitutional emperor and perpetual defender of Brazil,' with whom the United States then was, and still is at peace, against the form of the act of Congress in such case made and provided and against the peace, government, and dignity of the United States."

"13. And the jurors aforesaid, upon their oath aforesaid, do further present that the said John D. Quincy, on the day and year aforesaid, at the district aforesaid, within the limits of the United States and within the jurisdiction of the United States and of this Court, with force and arms was knowingly concerned in the fitting out a certain other vessel, called the Bolivar, otherwise called Las Damas Argentinas, with intent that the said vessel 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, to cruise and commit hostilities against the subjects and property of a foreign prince, that is to say, against the subjects and property of his imperial Majesty the constitutional emperor and perpetual defender of Brazil, with whom the United States then was and still is at peace, against the form of the act of Congress in such case made and provided and against the peace, government, and dignity of the United States. "

Page 31 U. S. 448

The defendant pleaded not guilty, and the cause came on to be tried before the circuit court on 8 April, 1830.

On the part of the United States evidence was given of the repairing and fitting out of the schooner Bolivar in the port of Baltimore in 1827. That she was originally a Maryland pilot boat of sixty or seventy tons. The work was done at the request of Henry Armstrong and of the defendant, who superintended the same; that she was fitted with sails and masts larger than those required for a merchant vessel, and was altered in a manner to suit her carrying passengers, and with a port for a gun. This evidence on the part of the United States was intended to apply to the twelfth and thirteenth counts in the indictment and to sustain the allegations therein.

It was in proof that the Bolivar sailed from Baltimore for St. Thomas on 27 September, 1827, having on board provisions, thirty-two water casks, one gun carriage and slide, a box of muskets and thirteen kegs of gunpowder, and after a bond had been given by John M. Patterson as master, and George Stiles and Victor Valette of Baltimore as owners, not to commit hostilities against the subjects or property of any prince or state or of any colony, district, or people with whom the United States was at peace. After her arrival at St. Thomas, Armstrong had no funds, and was uncertain whether he could get funds. At St. Thomas she was fitted as a privateer and sailed to St. Eustatia, having changed her name to Las Damas Argentinas; the defendant was her captain during the subsequent cruise. Armstrong was on board, not as an officer, but as an owner and as agent for the other owners. Armstrong on the voyage from Baltimore told a witness that if the vessel went privateering, it would be under the Buenos Ayrean flag; and that he had procured a commission for the Bolivar from an agent of the Buenos Ayrean government at Washington for eight hundred dollars.

A witness swore that he conversed with Armstrong about going to the West Indies, that Armstrong told him it was his intention, or rather his wish, to employ the Bolivar as a privateer, but he had no funds to fit her out as such, and could not tell until he got to the West Indies what he might ultimately do. Armstrong wanted witness in Baltimore to advance some

Page 31 U. S. 449

funds, and told him he would be glad if witness would go as surgeon. He spoke of the difficulty of getting funds, both in Baltimore and in the West Indies. The witness knew that Armstrong had no funds when he arrived in the West Indies, and was two or three days negotiating with Cabot & Co. of St. Thomas, and was uncertain of there getting funds.

From St. Eustatia, the vessel proceeded under the Buenos Ayrean flag and captured several vessels, Portuguese, Brazilian and Spanish, which were ordered, in consequence of the blockade of the Rio de la Plata, to the West Indies, in pursuance of instructions from the government of Buenos Ayres. The cruise terminated on 1 March, 1828; one prize and cargo produced $35,000, which was distributed among the crew.

It was admitted that before the year 1827, the United Provinces of Rio de la Plata had been regularly acknowledged as an independent nation by the executive department of the government of the United States.

The defendant moved the circuit court for its opinion and direction to the jury:

"1. That if the jury believes that, when the Bolivar left Baltimore, and when she arrived at St. Thomas, and during the voyage from Baltimore to St. Thomas, she was not armed or at all prepared for war, or in a condition to commit hostilities, the verdict must be for the traverser."

"2. That if the jury believe that when the Bolivar was fitted and equipped at Baltimore, the owner and equipper intended to go to the West Indies in search of funds with which to arm and equip the said vessel, and had no present intention of using or employing the said vessel as a privateer, but intended when he equipped her to go to the West Indies, to endeavor to raise funds to prepare her for a cruise, then the traverser is not guilty."

"3. That if the jury believed that when the Bolivar was equipped at Baltimore and when she left the United States the equipper had no fixed intention to employ her as a privateer, but had a wish so to employ her the fulfillment of which wish depended on his ability to obtain funds in the West Indies for the purpose of arming and preparing her for war, then the traverser is not guilty. "

Page 31 U. S. 450

"4. That according to the evidence in this 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 that the United Provinces of Rio de la Plata is and then was a state, and not a people within the meaning of the act of Congress under which the traverser 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 district attorney of the United States moved the court for its opinion and direction to the jury:

"1. That if the jury find from the evidence that the traverser was, within the District of Maryland, knowingly concerned in the fitting out of the privateer Bolivar, alias Las Damas Argentinas, with intent that such vessel should be employed in the service of the United Provinces of Rio de la Plata to commit hostilities or to cruise and commit hostilities against the subjects, or against the subjects and property of his imperial Majesty, the constitutional emperor and perpetual defender of Brazil, with whom the United States was at peace, then the traverser has been guilty of a violation of the third section of the Act of Congress of 20 April, 1818, which punishes certain offenses against the United States, although the jury should further find, that the equipments of the said privateer were not complete within the United States, and that the cruise did not actually commence until men were recruited, and further equipments were made at the Island of St. Thomas in the West Indies, and should further find that the Bolivar, on her voyage from Baltimore to St. Thomas, had no large gun, no flints, nor any cannon or musket balls, and that the muskets and sabers were, during the voyage, nailed up in boxes."

"2. That if the jury find from the evidence, that the traverser was, within the District of Maryland, knowingly concerned in the fitting out of the privateer Bolivar, alias Las Damas Argentinas, with intent that such vessel should be employed in the service of the United Provinces of Rio de la Plata to commit hostilities or to cruise and commit hostilities against the subjects or against the subjects and property of his imperial Majesty

Page 31 U. S. 451

the constitutional emperor and perpetual defender of Brazil, with whom the United States then were at peace, then the traverser has been guilty of a violation of the third section of the Act of Congress of 20 April, 1818, which punishes certain crimes against the United States, although the jury should further find that the intention so to employ the said vessel was liable to be defeated by a failure to procure funds in the West Indies, where further equipments were intended and required to be made, before actually commencing the contemplated cruise."

"3. That if the jury finds from the evidence that the traverser was, within the District of Maryland, knowingly concerned in the fitting out of the privateer Bolivar, alias Las Damas Argentinas, with intent that such vessel should be employed in the service of the United Provinces of Rio de la Plata to commit hostilities or to cruise and commit hostilities against the subjects or against the subjects and property of his imperial Majesty, the constitutional emperor and perpetual defender of Brazil, with whom the United States then was at peace, then the traverser has been guilty of a violation of the third section of the Act of Congress of 20 April, 1818, which punishes certain crimes against the United States, although the jury should further find that the fulfillment of the intentions so to employ the said vessel would have been defeated if further funds had not been obtained in the West Indies, where further equipments were intended and required to be made before actually commencing the contemplated cruise."

"4. That the twelfth and thirteenth counts in the indictment are good and sufficient in law whereon to found a conviction, notwithstanding the employment therein of the words 'in the service of a foreign people, that is to say' preceding the words 'in the service of the United Provinces of Rio de la Plata.'"

Upon the aforesaid prayers, and upon each of them, the judges were opposed in opinion, and thereupon the court ordered the same to be certified to the Supreme Court of the United States.

Page 31 U. S. 462

MR. JUSTICE THOMPSON delivered the opinion of the Court.

This case comes up from the Circuit Court of the United States for the Maryland District on a division of opinion of the judges upon certain instructions prayed for to the jury.

The indictment upon which the defendant was put upon his trial contains a number of counts, to which the testimony did not apply and which are not now drawn in question. The twelfth and thirteenth are the only counts to which the evidence applied; and the offense charged in each of these is substantially the same; to-wit, that the said John D. Quincy, on 31 December, 1828, at the District of Maryland, &c., with force and arms, was knowingly concerned in the fitting out of a certain vessel called the Bolivar, otherwise called Las Damas Argentinas, with intent that such vessel 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, to

Page 31 U. S. 463

commit hostilities against the subjects of a foreign prince; that is to say, against the subjects of his imperial Majesty, the constitutional emperor and perpetual defender of Brazil, with whom the United States then were, and still are at peace, against the form of the act of Congress in such case made and provided.

The act of Congress under which the indictment was found, 6 Laws U.S. 321, sec. 3, declares,

"That if any person shall 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, &c., every person so offending shall be deemed guilty of a high misdemeanor, and shall be fined not more than $10,000 and imprisoned not more than three years, &c."

The testimony being closed, several prayers, both on the part of the United States and of the defendant, were presented to the court for its opinion and direction to the jury, and upon which the opinions of the judges were opposed, and which will now be noticed in the order in which they were made.

On the part of the defendant, the court was requested to charge the jury that if they believed that when the Bolivar left Baltimore and when she arrived at St. Thomas and during the voyage from Baltimore to St. Thomas, she was not armed or at all prepared for war or in a condition to commit hostilities, the verdict must be for the defendant.

The prayer on the part of the United States upon this part of the case was in substance that if the jury find from the evidence that the defendant was, within the District of Maryland, knowingly concerned in the fitting out the privateer Bolivar with intent that she should be employed in the manner alleged in the indictment, then the defendant was guilty of the offense charged against him, although the jury should find that the equipments of the said privateer were not complete within the United States and that the cruise did not

Page 31 U. S. 464

actually commence until men were recruited and further equipments were made at the Island of St. Thomas in the West Indies.

The instruction which ought to be given to the jury under these prayers involves the construction of the act of Congress touching the extent to which the preparation of the vessel for cruising or committing hostilities must be carried before she leaves the limits of the United States in order to bring the case within the act.

On the part of the defendant it is contended that the vessel must be fitted out and armed, if not complete, so far at least as to be prepared for war or in a condition to commit hostilities. We do not think this is the true construction of the act. It has been argued that although the offense created by the act is a misdemeanor, and there cannot, legally speaking, be principal and accessory, yet the act evidently contemplates two distinct classes of offenders. The principal actors who are directly engaged in preparing the vessel, and another class who, though not the chief actors, are in some way concerned in the preparation.

The act in this respect may not be drawn with very great perspicuity. But should the view taken of it by the defendant's counsel be deemed correct (which, however, we do not admit), it is not perceived how it can affect the present case. For the indictment, according to this construction, places the defendant in the secondary class of offenders. He is only charged with being knowingly concerned in the fitting out the vessel with intent that she should be employed, &c. To bring him within the words of the act, it is not necessary to charge him with being concerned in fitting out and arming. The words of the act are fitting out "or" arming. Either will constitute the offense. But it is said such fitting out must be of a vessel armed, and in a condition to commit hostilities, otherwise the minor actor may be guilty when the greater would not. For as to the latter there must be a fitting out "and" arming in order to bring him within the law. If this construction of the act be well founded, the indictment ought to charge that the defendant was concerned in fitting out the Bolivar, being a vessel fitted out and armed, &c. But this, we apprehend, is not required. It would be going beyond

Page 31 U. S. 465

the plain meaning of the words used in defining the offense. It is sufficient if the indictment charges the offense in the words of the act, and it cannot be necessary to prove what is not charged. It is true that with respect to those who have been denominated at the bar the chief actors, the law would seem to make it necessary that they should be charged with fitting out and arming. These words may require that both should concur and the vessel be put in a condition to commit hostilities in order to bring her within the law. But an attempt to fit out and arm is made an offense. This is certainly doing something short of a complete fitting out and arming. To attempt to do an act does not, either in law or in common parlance, imply a completion of the act or any definite progress towards it. Any effort or endeavor to effect it will satisfy the terms of the law.

This varied phraseology in the law was probably employed with a view to embrace all persons of every description who might be engaged, directly or indirectly, in preparing vessels with intent that they should be employed in committing hostilities against any powers with whom the United States was at peace. Different degrees of criminality will necessarily attach to persons thus engaged. Hence the great latitude given to the courts in affixing the punishment, viz., a fine not more than $10,000 and imprisonment not more than three years.

We are accordingly of opinion that it is not necessary that the jury should believe or find that the Bolivar, when she left Baltimore and when she arrived at St. Thomas, and during the voyage from Baltimore to St. Thomas, was armed or in a condition to commit hostilities in order to find the defendant guilty of the offense charged in the indictment.

The first instruction therefore prayed on the part of the defendant must be denied, and that on the part of the United States given.

The second and third instructions asked on the part of the defendant, were:

"That if the jury believes that when the Bolivar was fitted and equipped at Baltimore, the owner and equipper intended to go to the West Indies in search of funds with which to arm and equip the said vessel, and had no present intention

Page 31 U. S. 466

of using or employing the said vessel as a privateer, but intended, when he equipped her, to go to the West Indies to endeavor to raise funds to prepare her for a cruise, then the defendant is not guilty."

"Or if the jury believes that when the Bolivar was equipped at Baltimore and when she left the United States, the equipper had no fixed intention to employ her as a privateer, but had a wish so to employ her, the fulfillment of which wish depended on his ability to obtain funds in the West Indies for the purpose of arming and preparing her for war, then the defendant is not guilty."

We think these instructions ought to be given. The offense consists principally in the intention with which the preparations were made. These preparations, according to the very terms of the act, must be made within the limits of the United States, and it is equally necessary that the intention with respect to the employment of the vessel should be formed before she leaves the United States. And this must be a fixed intention, not conditional or contingent, depending on some future arrangements. This intention is a question belonging exclusively to the jury to decide. It is the material point on which the legality or criminality of the act must turn, and decides whether the adventure is of a commercial or warlike character.

The law does not prohibit armed vessels belonging to citizens of the United States from sailing out of our ports; it only requires the owners to give security (as was done in the present case) that such vessels shall not be employed by them to commit hostilities against foreign powers at peace with the United States.

The collectors are not authorized to detain vessels, although manifestly built for warlike purposes and about to depart from the United States, unless circumstances shall render it probable that such vessels are intended to be employed by the owners to commit hostilities against some foreign power at peace with the United States.

All the latitude, therefore, necessary for commercial purposes is given to our citizens, and they are restrained only from such acts as are calculated to involve the country in war.

The second and third instructions asked on the part of the

Page 31 U. S. 467

United States ought also to be given. For if the jury shall find (as the instructions assume) that the defendant was knowingly concerned in fitting out the Bolivar within the United States with the intent that she should be employed as set forth in the indictment, that intention being defeated by what might afterwards take place in the West Indies, would not purge the offense which was previously consummated. It is not necessary that the design or intention should be carried into execution in order to constitute the offense.

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 la 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

Page 31 U. S. 468

"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."

This instruction must therefore be denied, and the one asked on the part of the United States, viz., that the indictment is sufficient in law, must be given.

These answers must accordingly be certified to the circuit court.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and on the points and questions on which the judges of the said circuit court were opposed in opinion and which were certified to this Court for its opinion agreeably to the act of Congress in such case made and provided, and was argued by counsel, on consideration whereof it is the opinion of this Court,

1. That it is not necessary that the jury should believe or find that the Bolivar, when she left Baltimore, and when she arrived at St. Thomas, and during the voyage from Baltimore to St. Thomas, was armed or in a condition to commit hostilities in order to find the defendant guilty of the offense charged in the indictment. Therefore the first instruction prayed for on the part of the defendant must be denied and that on the part of the United States given.

2. That the second and third instructions asked for on the part of the defendant should be given.

3. That the second and third instructions asked for on the part of the United States should also be given.

4. That the fourth instruction asked for on the part of the defendant must be denied, and the one asked on the part of the United States, viz., that the indictment is sufficient in law, must be given. It is therefore ordered and adjudged by this Court that it be certified to the said circuit court:

1. That it is not necessary that the jury should believe or find that the Bolivar, when she left Baltimore, and then she arrived at St. Thomas, and during the voyage from Baltimore to St. Thomas, was armed or in a condition to commit

Page 31 U. S. 469

hostilities in order to find the defendant guilty of the offense charged in the indictment. Therefore the first instruction prayed on the part of the defendant must be denied and that on the part of the United States given.

2. That the second and third instructions asked for on the part of the defendant should be given.

3. That the second and third instructions asked for on the part of the United States should also be given.

4. That the fourth instruction asked for on the part of the defendant must be denied, and the one asked on the part of the United States, viz., that the indictment is sufficient in law, must be given.



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