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or is subject to the military occupation of one or the other party. It is reported indeed on reliable authority that, at the demand of the commander-in-chief of the insurgent army, the putative Cuban government has now given up all attempt to exercise its functions, leaving that government, confessedly, (but there is the best reason for supposing it always to have been in fact) a government merely on paper. But imperfect and restricted as the Spanish government of the island may be, no other exists there- unless the will of the military officer in temporary command of a particular district can be dignified as a species of government."

The President denies not only the existence of any actual government on the part of those in insurrection, but even the claim of government; he says that there are scattered bands, wandering nomads, opposing the authority of the government of Spain. Such is his description of those whom the Attorney General now designates as "a people" or Republic of Cuba!

This prosecution is a novel one. The "civil disturbances" on the island of Cuba have existed for two years, and this is the first proceeding of the kind yet instituted under section 5283. Section 5286, as to military enterprises, covers all phases of hostile undertakings set on foot in this country by the fitting out of ships, by military expeditions, by enlistments, or by commissions. This section 5286 is applicable in time of peace as well as in time of war, in time of recognized war as well as in time of unrecognized war, and it must be admitted embraces the whole field of hostile operations. It makes it a crime against the laws of the United States to begin on our soil such hostile operations or to carry them on from hence. It is a domestic criminal statute and a domestic statute wholly. How different is section 5283! The explanation is that all along it has been generally supposed that the section treating of fitting out of cruisers of war only applied where there was open public war, where there were belligerents, where there was neutrality in the legal sense of that term.

The real reason why this proceeding is at this late day resorted to, is to obtain a condemnation of the vessel for

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doing what this court in the Wiborg case declared lawful;. that is, the transportation of war supplies to those engaged in insurrection. It is proposed, by resorting to proceedings. for a forfeiture of the vessel in a court of admiralty, to take away from the citizen the right of a trial by jury on the allegation of a crime for which the government seeks to exact a forfeiture. But if the proceeding was under section 5283, prohibiting military enterprises, not only would a jury trial be necessary, but in addition the government could not exact a forfeiture. No doubt could have existed in the minds of the jurists who framed the amendment to the act of 1794, as contained in the act of 1817, regarding the meaning of the expression "a people." That term has already been defined in the law regarding maritime insurance. Nesbitt v. Lushington, 4 T. R. 783, was decided by the Kings Bench in 1792, two years before the act of 1794. It was an adjudication of great importance, and the argument was by some of the most considerable members of the English bar. A ship approaching the Irish coast was set upon by an organized force for the purpose of seizing the ship, and holding her until the captain should agree to sell them the corn, with which she was loaded, at a price they stipulated. This they proceeded to do. The question arose, whether this was a restraint or detainment by "a people," and it was held in the negative. The court said, that the use of the word "people," in that connection, meant a power, "a people," a government. Lord Kenyon said, the word "people" referred to the ruling power of the country. Mr. Justice Buller observed, that it denoted the supreme power of the country, whatever that might be; that the word "people" did not apply to individuals but to nations in their collective capacity.

No question of jurisprudence was better settled than that appertaining to losses under such policies, by detention "of all kings, princes and people, of what nation, condition or quality soever." 2 Dane Abr. 113. In the authoritative work, Marshall on Insurance (1810), the author says that under these words, which are nearly the same in the policies of all the maritime countries, the insurers are liable for all losses occa

VOL. CLXVI-2

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sioned by arrests or detention of the ship or goods insured by the authority of any prince "or public body claiming to exercise sovereign power under what pretence soever." B. 1, ch. 12, sec. 5. In the same section the author observes that the word "people" in the policy means a people or nation, not a mob. "By the word 'people' in the policy is not to be understood any promiscuous or lawless rabble that may be guilty of attacking or detaining the ship; it means a people -- that is, a nation in its collective and political capacity.'

In Park Mar. Ins. (2 Am. ed. 1799), 78, it is said: "What the word 'people' in this clause of a policy of insurance means has lately been judicially settled.”

In Mauran v. Insurance Company, 6 Wall. 1, this court confirms such construction, and discusses its bearing upon our neutrality acts.

Chancellor Kent was quoted to the effect that the stipulation of indemnity against takings at sea, arrests, restraints and detainment of all kings, princes and people, refers only to the acts of government for government purposes, whether right or wrong. 3 Com. 302, note D, 6th edition.

Other illustrations were made of governments de facto, which, for certain purposes, are recognized as if they were de jure and regularly constructed nationalities: "The court, in the case of Nesbitt v. Lushington, 4 T. R. 763, fitly described the character of the government contemplated in the clause respecting the restraints, etc., of kings, princes or people, viz., 'the ruling power of the country,' the supreme power,' the power of the country, whatever it might be' - not necessarily a lawful power or government, or one that had been adopted into the family of nations."

6

The court concluded that the so-called Confederate government, being in the possession of the supreme power of the district of country over which its jurisdiction extended, was a government de facto, which could make a capture within the meaning of the policy. Mauran v. Insurance Co., 6 Wall. 1, 13.

No reason exists why the word "people" should have one sense when used in a maritime policy, but a different sense as

Mr. Phillips' Argument for Appellees.

used in the statute. The one assures protection against the acts of such a "people," while the other prohibits acts. Let us suppose that in view of this settled definition accepted by this court in the case of Mauran v. Insurance Company, 6 Wall. 1, the owners of the Three Friends, being about to take a voyage to Cuba, obtained a maritime insurance upon the vessel, containing the clause as to restraints of kings, princes and people. The vessel, while on her voyage, is arrested by persons engaged "in a civil disturbance in Cuba." An action is brought against the insurers in the United States District Court for the Southern District of Florida. The question arises as to whether the restraint was by "a people within the meaning of the instrument. The District Court decides in view of the accepted meaning of that term, that the restraint was not by "a people," and dismisses the proceeding. At the same time the Attorney General of the United States files a libel of condemnation in the same court, against the same vessel, on the ground that she had been fitted out in this country to be used in the service of the same people described in the other suit. The District Judge can only decide that he has already passed upon the meaning of the expression. He could not admit a different meaning of the same word when used in the act of Congress. In both instances the word referred to a power, or community, or government, whether right or wrong. On the one hand, there was a provision in the maritime law enabling a party to insure himself against certain maritime losses. On the other hand, there was a provision in an act of Congress which subjected a party to punishment and loss on account of certain maritime operations. The court could not give a different meaning to the term "a people,” unless compelled by the association of the word with other words in the act. The question therefore is, whether the legislature meant something different in the use of the word from what was indicated by every other word associated with it. In effect, the Government contends that the rule noscitur a sociis is not applicable; that while the words "any prince, state, district, colony," are all words of government, are all words of sovereignty, all refer to powers, yet the signification of the words

Mr. Phillips' Argument for Appellees.

"any people," is different. That it does not necessarily apply to any sovereignty, or body claiming sovereignty, but may denote persons unorganized as a political entity.

This expression, "any people," cannot be disassociated from the terms which precede it-any foreign prince or state, or any colony or district.

In the language of Lord Kenyon in Nesbitt v. Lushington, supra, "the meaning of the word 'people' may be discovered here by the accompanying words, noscitur a sociis. It means, the ruling power of the country.””

It would be strange, in the light of history, if all the other terms refer to the people in their collective and political capacity, a body politic or assuming to be a body politic, while this expression, "a people," may be construed to refer in another sense to persons in their individual capacity.

What, in 1817, was "the actual situation of the world," to use the language of Chief Justice Marshall? It was the situation of America, and especially of South America, which, by provinces, countries, districts, peoples, was in a state of recognized public war against Spain. The act of 1794 applied only to princes or states, and did not contemplate these new belligerent powers, and therefore, in 1817, it was found necessary to adapt the law to the actual situation of the world. I only dwell upon belligerency for the purpose of signifying a designated sovereignty or asserted government not yet recognized as independent or admitted as such into the family of nations. It is stated by the Attorney General that before this act of 1817 the word "state" referred to such powers as those of South America, and that it could not have been intended that Congress inserted the words "a people," unless they had meant something else than a state, unless they referred to a collection of persons. The Attorney General says something in addition to that was intended by the use of the word "people," and claims that the act of 1794 covered belligerents. I submit that this was not the interpretation of the act of 1794. Chief Justice Marshall, on the circuit, disclaimed that the words "prince or state" covered the case of one of the recognized South American belligerents. I refer to