(concurring.) The importance of this case seems to me to furnish a sufficient excuse for the filing of individual opinions by the judges before whom it was argued in this' court. I consider the seizure of the Itata upon the charges set forth in the libel of information in this case to have been justifiable. The circumstances connected with her coming to the port, of Safi Diego, and clandestine departure therefrom, were not only sufficient to create suspicion, but gave the appearance of an unlawful purpose to be accomplished hv ■ use of said vessel, from which there might he resulting- complications between our government and the republic of Chile'. The duty of preventing insurgents and belligerents from using The seaports of this country as places for the fitting out of armed vessels to he employed In acts of hostility towards other countries, requires the national authorities to act with promptness and vigor whenever actions or movements of persons or vessels afford reasonable grounds for supposing that a violation of the neutrality laws of the United States is about to be attempted; and the authorities are justified in acting upon appearances. But, the case having- been submitted to the test of judicial inquiry, the court is called upon to deal with realities, and not appearances, and to decide according to the facts as developed and shown by the evidence. Forfeiture of the vessel under section 5283, Rev. St. U. S., cannot be decreed unless the government has established by proof the existence of all the facts as to acts and intents essential to bring- the case within the purview of the statute.
While the case is founded upon a municipal law, it requires consideration of international relations and comity. The purpose of the statute is to maintain peace between other countries and ours on terms of fairness and justice by prohibiting the prepara-*519lion within this country of hostile expeditions against other nations. Section 5283, Rev. St., does not make the fitting oat and smiling of a vessel at a port of the United States unlawful unless it he coupled with specified intents or purposes, one of which is that the vessel, after being so fitted out and armed, “shall be employed * * to cruise or commit hostilities against the subjects, citizens, or property of” a foreign prince, state, colony, district, ott people. The libel of information in this case charges that certain persons did unlawfully fit out and arm the Ifcata with intent that she should be employed to cruise and. commit hostilities against the republic of Chile. On this point there is an issue, and a finding of the truth of the charge is indispensable to a sufficient basis for a lawful decree in favor of the United States. It, is a strange anomaly of the case that this issue is made by the republic of Chile. The acts whereby the vessel has become forfeited, as the libel of information alleges, if criminal ar 'all, arc so because designed to do harm to the government of Chile; end in the very suit in which it is sought to have the forfeiture adjudged for said cause that government has intervened, claiming a right of property in the vessel, and by its answer has assumed responsibility for the acts alleged to be criminal, and avows that all the persons who participated in said acts, instead of being enemies, are and were its faithful defenders. The bond given for ihe release of the vessel which is now held in [ilace of the vessel was given in its behalf, so that the penalty in case of a decree in favor of the United Btat.es must fall upon an independent nation, and that nation the one for tluc sake of whose friendship our government, has taken the pains to arrest the Ttata and now prosecute this case.
It: is said that the case should be determined according to the fads existing at the lime of the occurrences, and that, if the Itata was then in the hands of insurgents, whose purpose was to employ her as a transport in making war upon the established government of Chile, acts of the insurgent force's in violation of a statute of the United Btates do-not become purged of criminality by ¡he subsequent success of the insurrectionary (enterprise. Ir is unnecessary to admit or controvert the soundness of this proposition, becauee it doe's not fit ihe facts of the case. It is not applicable, for the reason that the Congressional party, instead of being an organization of rebels against the govermnemt of Chile, was in fact composed of and controlled by the legislative branch of the national government, and was supported by a, considerable part of its military and naval force's. The* obje'ct of the Congressional party was not: revolution, but the preservation of the govermnemt by deposing .President; Ralmaceda for malaelministraliem of his office. Bahnace'da. was not; ihe government. He Avas merely the highest officer and head of the government. The struggle, therefore, was not between the governmemt and a faction, but between! the different departments of the government. While it continued the condition of affairs in Chile was similar to what might; have benn brought about: in the United States if a sufficient number *520of senators had voted for the impeachment of President Andrew Johnson, and the vote had been followed by an attempt on his part to forcibly resist removal from office. The right to determine finally every question involved in that struggle, belonged to the people of Chile, and their decision must be accepted everywhere as conclusive. It is now an historical fact that the Congressional party, in whose service the Itata was employed, represented 1he will and sovereignity of the Chilean people. This court is bound, in deciding the case, to take notice of the important facts of history. We cannot be expected to attempt a retrial of the question of right or wrong in what the people in Chile have done for themselves.
By the foregoing considerations I have been led to the conclusion that the accusation against the Itata has not been sustained. The contrary is established, and I think that the decision of this court affirming the judgment of dismissal rendered by the district court ought to be placed upon the ground that the vessel was not intended for service against the republic of Chile.