31 U.S.

445
6 Pet. 445
8 L.Ed. 458

THE UNITED STATES

v.
JOHN D. QUINCY.
January Term, 1832

THIS case came before the court on a certificate of division of opinion by

the judges of the circuit court of the United States for the destrict of
Maryland.
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 are 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
misdemeanour, and shall be fined not more than ten thousand dollars, and
imprisoned not more than three years; and every such ship or vessel, with
her tackle, apparel and furniture, together with all materials, arms,
ammunition and stores, which may have been procured for the building
and equipment thereof, shall be forfeited; one half to the use of the
informer, and the other half to the use of the United States.
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 were, and still are 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 were and still are 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.
The defendant pleaded not guilty; and the cause came on to be tried before
the circuit court, on the 8th day of 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
the 27th 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 were 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 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 and 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 the 1st of March 1828: one prize and cargo
produced thirty-five thousand dollars, 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 their opinion and direction to
the jury:
1. That if the jury 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 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 endeavour to
raise funds to prepare her for a cruise; then the traverser is not guilty.
3. That 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
traverser is not guilty.
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 offence 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 their 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 were at peace, then the traverser has been guilty of a
violation of the third section of the act of congress of the 20th of April

1818, which punishes certain offences 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
sabres 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, 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 the 20th of 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 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 then were at peace, then the traverser has been guilty of a
violation of the third section of the act of congress of the 20th of April
1818, which punishes certain crimes against the United States; although
the jury should further find, that the fulfilment 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.
The case was argued by Mr Williams, for the United States: and by Mr
Writ, for the defendant.
Mr Williams, for the United States, contended, in support of their first
prayer, that the guilty intention having been proved to have existed in the
mind of the traverser in the United States, and the guilty enterprise having
actually commenced there, the traverser is guilty of a violation of the third
section of the act of the 20th of April 1818; although the equipments were
not completed in the United States, and although the cruise was not
commenced, nor the Bolivar prepared to commence her cruise, until after
her arrival in St Thomas.
The section in question punishes the fitting out and arming; the attempting
to fit out and arm; the procuring to be fitted out and armed; and, with a
view to comprehend all who shall have any participation in disturbing the
neutral relations of the United States, it punishes those who shall be
knowingly concerned in the furnishing, fitting out or arming any ship or
vessel, with intent, &c. The offence charged here is for being knowingly
concerned in fitting out, &c.
The Bolivar was in fact not only fitted out in the port of Baltimore, but
was partially armed; having on board muskets, sabres, powder and a gun
carriage, and a commission to cruise.
If it be necessary for the completion of the offence, that the vessel should
not only be fitted out, but also armed, it is manifest that this important act
of congress, required by the laws of nations, and essential to preserve the
peace of this country with foreign nations, will become a dead letter. For it
is not only easy to evade its provisions, but at least equally convenient to
do so, by having some additional equipments, however inconsiderable, to
be effected abroad. This position admits that the attempt to fit out and
arm, however small the progress therein, is an offence; while the complete
fitting out, having a commission on board, with the most flagrant intention
to privateer, is no infringement of the act. The slightest augmentation to
an armed vessel, is undeniably an offence under the fifth section.
The policy and scope of this whole law, so far from restraining the express

terms used in this section, afford the strongest aid towards a literal
construction of those terms. The twelfth and thirteenth counts of this
indictment, and the first prayer, are drawn in the very words of the third
section of the act in question. And if these counts and this prayer are not
sustained, it must be on the ground that the act ought to be interpreted
differently from its obvious and literal meaning.
The reason for a strained interpretation, which will have the effect to
defeat and repeal this wholesome statute, will scarcely prevail with this
court. And the authorities will be found to overthrow such an
interpretation; and to support that which is insisted on by the prosecution.
The exact and faithful discharge of the duties which a neutral position
imposes upon governments, is among the highest and most important of
all national duties. Honour and interest concur in making it especially
binding on our own government: and while this conduct has in a very
great degree promoted the prosperity of this country; it has placed the
policy and character of the nation in a high and elevated position in the
estimation of other powers.
In the third circuit and Pennsylvania district, a decision was made upon
the words on which this indictment is drawn; and it was there decided, in
the case of the United States v. Guinet, 2 Dall. 321, 'that the converting a
ship from her original destination, with intent to commit hostilities; or, in
other words, converting a merchant ship into a vessel of war, must be
deemed an original outfit, for the act would otherwise become nugatory
and inoperative. It is the conversion from her peaceable use to the warlike
purpose, that constitutes the offence.' And in this case far less advance
towards arming was made, than in the case of the Bolivar. Besides, that
the privateer 'Les Jameaux' never actually proceeded on a cruise, and yet
Guinet was convicted. Whereas, in the case at bar, the Bolivar, having
actually performed her cruise and made captures of vessles and property
of nations with whom the United States were at peace; no room is left for
doubting the object of her outfit in the port of Baltimore.
In the case of Needham et al., Peters's C. C. Rep. 487, the same principle
was decided.
Cited, also, The United States v. Glass, 3 Wash. C. C. Rep. 65; Kent's
Commentaries, 1 vol. 114.
The decisions of this court on the acts prohibiting the slave trade, furnish
cases strikingly analogous to the one now under argument.

The expressions used in these acts seem, indeed, to require a more

complete development and fulfilment of intention, than the neutrality acts.
In the last slave trade act, which passed at the same session as the act
upon which this indictment is framed, it is provided, that 'if any ship or
vessel shall be built, fitted out, equipped, laden, or otherwise prepared, for
the purpose of procuring any negro,' &c. 'such ship,' &c. 'shall be
forfeited.' The Emily and Caroline, 9 Wheat. 388; The Plattsburgh, 10
Wheat. 141; The United States v. Goodin, 12 Wheat. 171, 173; The
Alexander, 3 Mason, 177; 1 Dodson, 81, were cited.
Mr Chief Justice Marshall says, in giving the opinion of this court, in 5
Wheat. 95, 'that although penal laws are to be construed strictly, they are
not to be construed so strictly as to defeat the obvious intention of the
legislature. The maxim is not to be so applied as to narrow the words of
the statute to the exclusion of cases which these words in their ordinary
acceptation, or in the sense in which the legislature has obviously used
them, would comprehend. The intention of the legislature is to be
collected from the words they employ; where there is no ambiguity in the
words, there is no room for construction.' Cited, also, 2 Peters, 662,
opinion of Mr Justice Story.

In support of the second point, it was insisted, that the intention coupled with
acts tending to the accomplishment of the object constitutes the offence, under
this statute. For no otherwise could our neutral relations be preserved with
nations belligerent towards each other. And in the description of the offence, it
differs from many common law offences, such as robbery, murder, &c. And it
is not necessary the criminal intent should be accomplished in order to subject
the party to conviction and punishment.

As analogous, see the cases in larceny, where carrying away is essential to the
offence. Arch. Pl. & Ev. 127, and the authorities there cited; and 2 Russell's Cr.
L. 1034; where, among other similar decisions, the twelve judges of England
held, 'that the removal of a parcel from the head to the tail of a wagon, with
intent to steal it, was a sufficient asportation to constitute larceny.'

In favour of the third point, it was contended, that the acts given in evidence in
this case, so far consummated the offence, that no locus penitentiae remained
for the traverser, after leaving the port of Baltimore.

The criminal intent, and the acts consequent thereon, have been conjoined in
this case, so that there can be neither a divorce nor a purification by a possible,

or even a probable failure of continued and successful support.

5

All human enterprises are subject to contingencies. The death of the actors, the
shipwreck of the vessel, &c. are among the casualties to which every maritime
adventure is exposed. These may be supposed as much to enter into the
calculation of those who engage in such adventures, as the uncertainty about
the requisite funds influenced the mind of the traverser in this case.

If the traverser was innocent, because his guilty enterprise might have been
defeated or would have been defeated, if the requisite funds had been withheld;
how can any one ever be guilty, since some contingencies must be inseparable
from every enterprise?

Here, unfortunately for the traverser's case; and what illustrates the
extravagance of this part of the defence; the contingency turned up favourably
for the adventure. And that which commenced in Baltimore was
uninterruptedly prosecuted to the close of a successful cruise. Cited 2 East's P.
C. 557; 2 Russell's C. L. 991, 1036.

In support of the fourth point, the counsel for the United States contended:

That the word people was descriptive of an independent government,

acknowledged by the United States, as the word is used in this act.

10

This word has no technical meaning, for which it invariably stands; and to
which courts are obliged, as in technical words, always to annex the same ideas,
as e. g. the words felonious, truitorous, &c. Nor is this word used in this act in
opposition, or made to have a more limited meaning than ordinary, by reason of
being placed in connexion with other words, by which its general and usual
meaning could be affected.

11

Thre is nothing in the context here to indicate the legislative intention, that this
word was to be understood in any other than its ordinary or vernacular sense.

12

If there be any thing remarkable in the use made of the word people, in this
government and country it is in its enlarged, rather than its restricted sense. And
it cannot be shown, by examples, that congress ever use it in a narrow
interpretation.

13

The largest state in the confederation uses the word as descriptive of its

corporate character: 'The people of New York.'

14

But the meaning of this word must be ascertained by reference to standard

authorities; and Johnson, Crabbe's Synonymes, were referred to.

15

The traverser's counsel,in asking the court to support his fourth prayer, upon
the ground that the 'provinces of Rio de la Plata' were not a people, because
they had been acknowledged by the government of the United States, thereby to
overthrow this indictment,makes a demand, founded only on a gratuitous
hypothesis, and deriving no support, either from authority or popular usage.

16

A wholesome rule for the construction of words used in criminal as well as in

civil cases, will be found in 1 Chitty, C. L. 172, laid down by lord
Ellenborough. 'Except in particular cases, where precise technical expressions
are required to be used, there is no rule that other words shall be be employed
than such as are in ordinary use, or that in indictments or other pleadings a
different sense is to be put upon them, than what they bear in ordinary
acceptation,' &c.

17

Mr Wirt for the defendant. The only two counts in the indictment for the
consideration of the court, are the twelfth and thirteenth; which are founded on
the act of congress of 1818, for the punishment of certain crimes. The
difference between the counts is in the manner of laying the intent charged to
the defendant; the twelfth charges that the defendant with the intent that such
vessel be employed; the thirteenth, with intent that such vessel should be
employed.

18

The prayers of the traverser are founded on the evidence; and they called upon
the court to say, whether, on the hypothesis that the jury should believe certain
facts which his counsel considered as fairly deducible from the evidence, there
had been any violation of the statute on which the indictment is founded.

19

The statute is one of a peculiar character, growing out of peculiar

circumstances, and directed to a peculiar object connected with our neutral
rights, on the one hand, and some neutral obligations on the other, which
distinguish it from the slave act, and the other acts of congress with which the
argument for the United States has sought to confound it. It demands a
construction of its own; which it is for the first time to receive in this court.

20

The course of argument proper to be pursued, is, first, to examine the act upon
its own construction; and, second, to show the substantial difference between its

provisions, and those of the salve and other acts with which it has been so
confounded.
21

1. To examine the act on its own construction.

22

The object of all construction is to arrive at the intention of the legislature. The
direct mode of doing this, is by looking at the language of the law; but there are
other auxillary modes of arriving at this intention, to which courts also resort
for the purpose. One of the most familiar rules for interpreting statutes is to
refer to the old law, the mischief and the remedythat is, to look to the history
of the act; the cause which produced it; and the precise object which it was
intended to attain. Preston v. Browden, 1 Wheaton.

23

For this salutary purpose, and with this legitimate object, the court will permit a
reference to the history and peculiar circumstances which produced the act of
congress now under consideration.

24

This act, as is well known to the court, is only a transcript of the act of 1794, so
far as this prosecution is concerned. The act of 1794 was produced by an
attempt on the part of M. Genet, the minister of France, to take advantage of the
intense sympathies of this country in behalf of revolutionary France, to involve
the United States in the war between that country and Great Britain, and the
powers allied with her against France.

25

This was the mischief which produced the statute; and it is necessary that the
court should have a precise view of this mischief, in order to measure the
corresponding remedy in the statute. They are referred for the circumstances
under which the statute was passed, to 5 Marshall's Life of Washington, 409,
10, 11; 427, 8; 430, 2, 3; 441, 2, 3. The Message of the President, Dec. 3, 1793,
1 State Papers, 39, 40. Proclamation of Neutrality, 1 State Papers, 44, 5, 6.

26

All that was required by the government, and the whole purpose of the law, was
to preserve our neutral relations, as enjoined by the law of nations; and as the
rules and regulations which had been prescribed by President Washington in
the proclamation, had been declared to go all the length of our neutral
obligations; why should it be supposed that congress intended to go farther, to
the unnecessary and extreme prejudice of the American trade?

27

The mischief had been, the arming and equipping vessels in our ports, and
sallying out thence in warlike array to cruise and commit hostilities on foreign
nations, with which we were at peace: that was the mischief; and why should

the remedy be more extensive? It was declared in the instructions, that a vessel
whose equipments were so equivocal as to be applicable either to commerce or
war, was not a proper object of seizure or molestation. No obligation of
neutrality required us to disturb her; while a just regard to the rights of neutral
trade, required that she should be left at liberty to pursue her own course, free
from molestation.
28

It is now insisted, on the part of the traverser in this case, that the act under
consideration, with this light of its history collected upon it; is manifestly
intended to cover no more ground than the executive rules and regulations,
which have been referred to.

29

Having thus brought the history of the act to aid in its construction, the rule that
penal statutes shall be interpreted strictly, is invoked to aid in the further
consideration of the application of the law to the case made out by the United
States on the testimony.

30

A careful scrutiny of the language of this act, following, as it did, close on the
proclamation of President Washington, and adverting to the views and purposes
of its enactment, as shown by its history; will satisfy the court that the position
assumed for the traverser is fully sustained. The offence to be punished was the
fitting out and arming any ship or vessel within the ports of the United States,
intended to be employed in hostilities against the subjects of any foreign state,
in amity with us.

31

The meaning of the terms fitting out and arming is, that the vessel shall be both
fitted out and armed; and to be so fitted out and armed, as to be placed in a
condition to commit hostilities. The whole of the purpose of the law was this,
and the vessel was to be completely fitted out and armed in our own ports, and
was to be put in a condition, and with a capacity to commit hostilities
immediately. Nothing else, and nothing less than this was the purpose of the
law.

32

Between the attempt to fit out and arm, and the fitting out and arming, there is a
wide and important difference. To fit out and arm is to do the thing completely;
to attempt to fit out and arm means that the party has begun it, but has been
prevented accomplishing the purpose by the interference of the government. He
has all the guilt of the intention, because his intention was to fit out and arm
completely in our ports, in violation of the act. It is therefore incumbent on the
prosecution to prove that the object of the traverser was to fit out and arm
completely; and in all respects to place in a state for immediate hostilities, the

vessel referred to in the indictment.

33

The argument submitted to the court is, that the third section of the act on
which the indictment is founded makes the offence to consist in fitting out and
arming, which is an entire act; and requires the vessel to be placed in a posture
for war, in a condition to commit immediate hostilities, before the offence is
completed; such being the only rational meaning of the words of the statute.
That if the indictment charges the attempt, the charge must not be of an attempt
to fit out merely, but of an attempt to fit out and arm; that if it charge a
procurement, the charge must not be that the accused procured the vessel to be
fitted out merely, but that he procured her to be fitted out and armed. In these
three descriptions the law is looking at the prime actor, for he is described as
the person who fits out and arms; or attempts to fit out and arm; or procures to
be fitted out and armed: he is the actor, or the procurer.

34

With regard to the principal or prime actor, it is not said if he knowingly does
the thing; for knowledge is involved in the very description of the offence; but
the language of the law as to those who were concerned in furnishing any of the
materials is different; this must have been done knowingly. With respect to
those persons their participation is manifestly of an accessorial character: they
are not indeed called accessories, but the language in which the agency is
described, construed with that in which the operations of the principal are
described; manifest that the legislature was looking at them in an accessorial
light. There is, then, in a fair construction of the law, a principal in the offence,
and an accessory. But the offence must have been committed; there must have
been a fitting out and arming, or an attempt to fit out and arm, or the principal
actor has been guilty of no offence; and it could not have been intended to
punish the secondary or accessorial actor, if the principal actor has not been
guilty of an offence. This would be the case, if to attempt to fit out, not being an
offence, any one had, knowingly, furnished articles to the vessel to be used for
that purpose: and yet, if before the complete fitting out and arming had been
accomplished, the vessel had been seized, and this consummation prevented,
the prime actor would not have been indictable under the law. Thus the part of a
transaction becomes a crime in one citizen, while the whole of it is not a crime
in another. The construction on the other side is, that the law meant to punish,
not merely the consummation of the act, the fitting out and arming, but every
step that is taken towards it; so that the fitting out, per se, becomes an offence,
is a crime, without arming. But if this had been the intention of congress the
copulation and would have found no place in the description: the language of
the law would have been 'fit out or arm,' and attempt to fit out or arm.

35

The following cases were cited and commented upon, 1 Wheat. 121; 5 Wheat.

76, 94; 1 Gallison, 114; 1 Paine's C. C. Rep. 32; 2 Wheat. 119; 3 Dallas, 328;
the case of Smith and Ogden, 240; Peters's C. C. Rep. 487; 9 Wheat. 389; 10
Wheat. 141; 12 Wheat. 472.
36

The intent charged against a defendant under the act should be a fixed and
positive intent, not in any manner contingent. The vessel in this case was in a
condition to be considered as going out as a commercial vesselshe had no
crew for warno musketsno ammunition. The offence must be
consummated within the United States, and the intent is not to be collected
from what occurred afterwards.

37

The evidence shows, that until the vessel arrived at St Thomas the purpose of
privateering was uncertain. It depended for its accomplishment on the receipt of
funds there, and for some time this was uncertain. If the vessel had been sold
on her arrival in the West Indies, most certainly the defendant could not be
found guilty. The intention in cases of larceny is not like this; in those cases,
where a slight asportation has taken place, it is sufficient to constitute the
offence. But there the act is complete by such removal.

38

The objection to calling the government of Rio de la Plata 'a people' is purely
technical, growing out of the case of Gelston v. Hoyt. This related to the
situation of Piteon and Christophe in St Domingo; and the court, in that case,
said neither could be considered a state. The word people applies to a
community in the course of revolution, and not yet settled down. But this was
not the situation of Buenos Ayres. It was a state, and should have been so
described. The object of the law was to include political communities of every
denomination. The court cannot know but that there may be a people called
Buenos Ayres; a reference to particulars would not cure the defect. Buenos
Ayres being a state, should have been so denominated.

39

Mr Williams, in reply.

40

The Bolivar did not sail from the United States as a merchant vessel, for she
had no cargo; nor was there ever produced any account of sales of an outward
cargo. She carried out nothing but provisions for a privateer's crew, and
munitions of war. The whole invoice cost only six hundred and eighty-seven
dollars and eighty-one cents; whereas she was advertised by the traverser to be
a vessel capable of carrying from four to five hundred barrels.

41

At the time when the first neutrality act was passed (1794), the unjustifiable
acts consisted in not only fitting out, but also in arming; and therefore, this

description of the offence in the act, as well as in the correspondence of the

executive department, becomes the most prominent. But the act would have
been soon found to be wholly inefficient, if more ample provisions had not been
enacted. If, in Genet's time, he had set on foot the fitting out of privateers from
this country, to be armed in the West Indies, can it be doubted that our
government would have denounced this practice as contrary to our neutrality
and the laws of nations?
42

The case in 2 Wheaton, relating to the transportation of oxen across the line,
favours our construction. There it was attempted, for the United States, to bring
a case within the operation of a penal law, which the letter of the law did not
cover. Here the indictment, and the act on which it is drawn, comprehend, in
their letter and spirit, the very case of the traverser.

43

The fourth class of offences in the third section, is not confined to accessorial
participators, but is calculated and intended to comprehend all parties
conderned in fitting out or in arming. The argument on the part of the traverser
requires words to be interpolated into the law; and contradicts the rule, that an
indictment, drawn in the words of the act, is sufficient. For if the arming, as
well as fitting out, must be proved, so also ought it to be averred in the
indictment.

44

The slave trade acts are, manifestly, analogous to the neutrality acts; and the
mischiefs of the former trade are not greater than those which flow from
violating the latter acts. For to the lawless practice of privateering, may be
ascribed the growing prevalence of piracy.

45

Mr Justice THOMPSON delivered the opinion of the Court.

46

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.

47

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 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.
48

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.

49

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.

50

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.

51

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

52

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.
53

54

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 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.

55

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.

56

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.

57

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

58

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

59

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 endeavour to raise funds to
prepare her for a cruise; then the defendant is not guilty.

60

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.

61

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.
62

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.

63

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.

64

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.

65

The second and third instructions asked on the part of the 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 after wards 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.

66

The last instruction or opinion asked on the part of the defendant was:

67

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.

68

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.
69

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 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.

70

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.

71

These answers must accordingly be certified to the circuit court.

72

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,

73

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.

74

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

75

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

76

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:

77

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
hostilities, 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.

78

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

79

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

80

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.