Supreme Court of United States.
*451 The case was argued by Mr. Williams, for the United States: and by Mr Wirt, for the defendant. Mr Williams, for the United States.
*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 offence charged in each of these is substantially the same; to wit, that the said John D. Quincy, on the 31st day of 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 commit *463 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, 6th vol. Laws U.S. 321, sect. 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 misdemeanour, and shall be fined not more than ten thousand dollars, 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 their 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 believe 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 offence 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 *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 offence created by the act is a misdemeanour, 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 offence. 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 *465 the plain meaning of the words used in defining the offence. It is sufficient if the indictment charges the offence 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 offence. 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 endeavour 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 were 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 ten thousand dollars, 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 offence 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 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 *466 of using or employing the said vessel as a privateer, but intended, when he equipped her, to go to the West Indies, to endeavour to raise funds to prepare her for a cruise; then the defendant is not guilty.
Or, if the jury believe, 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 fulfilment 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 offence 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 authorised 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 *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 offence which was previously consummated. It is not necessary that the design or intention should be carried into execution in order to constitute the offence.
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 offence 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 particularises that which by the word people *468 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 offence 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 when she arrived at St Thomas, and during the voyage from Baltimore to St Thomas, was armed, or in a condition to commit hostilities, *469 in order to find the defendant guilty of the offence 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.
