326 Costs ruled and in the rygg. reig¤Conntriesby Anerkau citizens: the a£tis onlyipuniiha- •’V* blewhenthearntamentandllotesarea liedto theueof the velfel in which they are ihipped. But Ptlie melt that can polli- bl be inferred from the evidence, isan augmentation of the force of, the vediel, as {he arrived here with guns actually mounted 5 and then the indictment fhould have been founded on the 4th, inllead of the gd feclion, of the aEt. There is a great difference, in the language and penalties of _ the two feétions, which un- doubtedly arofe from the very dillirrent nature of the cafes, to which they refpeélively apply. For, it is neither fo offenlive in itfclf, nor fo dangerous to the peace of thenation, that a veil`el already armed lhould add fomcthing to its force, as that a veifel ilrould originally be conhrnfted and equipped within our ports, for the purpofes of war. Hence, therefore, the bare attempt in the latter cafcis made criminal; but in the former the unlaw- ful ac} mult be confummated. The words of the 4th fcétion refer to ihips of war, cruifers, or other armed vefl`els : all the writers on the fubjeét llate, that there are four kinds of armed vefcls, three with commiflions, and one without com- rniilion, towit—veliels of n·ar,privateers, lettnsof marquc, and all otherarmed veifels; and this vellel mufibeincluded in the lall: dcfcription,not being embraced by the others. ad. With refpeélz to the fetund eBi·.ntial fa£t, there isnot fumcient evidence tolhew, that the defendant was knowingly concerned in the illegal outfit of the vellel. He acted only asan interpreter; which, notwithllam ding the generality of the word, concerned, cannot fairly bein- cluded in the dehnitiorr of an ofence, that calls for proof of a fe- rious intention tofurniih and outht the vciiel. There was no crime in being owner of the guns atSoutlt-flreet wharf; and the objeil in ordering them to be put on board the Pilot-boat does not appear. The tranfaéiion with Mmderrboll EJ' Co. rather proves that the guns were not intended for this vellizl, as it _ would have been ealier, more expeditious, and fafer, in that cafe, to fend them on hoard from Wilmington, with the water- ealks, and other articles, which were actually fent by them. The account found in the defendant’s polfellion, relates to the difburfements of a fa£l:or for his principal :—-It is not {hewn how it arofe; whether before or after the articles were received; and after a veifel illegally equipped has failed, it cannot be an offence within the ad, to pay drafts in tlifcharge of the tradel`· mcn’s bills. Prefumptions unfavorable to innocence, ought not to be encouraged in a cafe fo highly penal. Rowle, the Diiirifl Attorney, entered into a defcription of the principles and advantages of an honorable neutrality; and relied upon the good-fenfe and patriotifm of the jury, to pre- vent their being fcduced by a rctrofpeflive view of the popular prejudices that had formerly prevailed. He then conteudetm. I
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