nary mode of defining crimes, and so far the constitutional power of defining and punishing piracies and felonies on the high seas is strictly complied with. But, with regard to the first class of cases, the Legislature refers for a definition to other sources to information not to be found in that section itself. The words are these: "If any person shall commit upon the high seas, etc., murder or robbery, or any other offense, which, if committed in the body of a county, would by the laws of the United States, be punishable with death, etc., such persons shall, upon conviction thereof, suffer death." Thus referring to the common-law definition of murder and robbery alone, or to the commonlaw definition of murder and robbery, with the superadded statutory requisite of being made punishable with death, if committed on land, in order to define the offense, which, under that section, is made capitally punishable.

The crime of robbery is the offense charged in this indictment, and the question is, whether it must not be shown that it must have been made punishable with death, if committed on land, in order to subject the offender to that punishment, if committed on the high seas. And singular as it may appear, it really is the fact in this case, that these men's lives may depend upon a comma more or less, or upon the question whether a relative, which may take in three antecedents just as well as one, shall be confined to one alone. Upon such a question I here solemnly declare that I never will consent to take the life of any man in obedience to any court; and if ever forced to choose between obeying this court on such a point, or resigning my commission, I would not hesitate adopting the latter alternative. But to my mind it is obvious that both the intent of the Legislature and the construction of the words are in favor of the prisoners. This, however, is more than I need contend for, since a doubt relative to that construction or intent ought to be as effectual in their favor as the most thorough conviction.

When the intent of the Legislature is looked into, it is as obvious as the light, and requires as little reasoning to prove its existence, that the object proposed was, with regard to crimes which may be committed either on the sea or land, to produce an uniformity in the punishment, so that where death was inflicted in the one case it should be inflicted in another. And Congress certainly legislated under the idea that the punishment of death had been previously enacted for the crime of robbery on land, as it had in fact been for murder and some other crimes. And in my opinion this intent ought to govern the grammatical construction, and make the relative to refer to all three of the antecedents, murder, robbery and other crimes, instead of being confined to the last alone. That it may be so applied consistently with grammatical. correctness, none can deny; and if so, in favorem vitæ, we are, in

my opinion, legally bound to give it that construction. Again; there is no reason to think that the word other is altogether a supernumerary member of the sentence. To give the construction contended for in behalf of the United States, that word must be rendered useless and inoperative; the sentence has the same meaning with or without it. But if we retain it and substitute its definition, or examine its effect upon the meaning of the terms associated with it, we then have the following results: other is commonly defined to mean not the same, or (what is certainly synonymous), not before mentioned. With this expression, the sentence would read thus: "murder, or robbery, or any offense not before mentioned," for which the punishment of death is by law inflicted. And as the use of the comma is exceedingly arbitrary and indefinite, by expunging all the commas from the sentence the meaning becomes still more obvious. Or if, instead of substituting the words not before mentioned, we introduce the single term unenumerated, in the sense of which the term other is unquestionably used by the Legislature, the conclusion becomes irresistible in favor of the prisoners. There is another view of this subject that leads to the same conclusion; by supplying an obvious elision, the same meaning is given to this section. The word other is responded to by than, and the repetition of the excluded words is understood. Thus, in the case before us, by supplying the elision, we make "murder, robbery, or any crime other than murder or robbery," punishable, etc., the signification of which words, had they been used, would have left no doubt.

There are several inconsistencies growing out of a construction unfavorable to the prisoners which merit the most serious consideration. The first is, the most sanguinary character that it gives to this law in its operation; for it is literally true, that under it a whole ship's crew may be consigned to the gallows for robbing a vessel of a single chicken, even although a robbery committed on land for thousands may not have been made punishable beyond whipping or confinement. If natural reason is not to be consulted on this point, at least the mild and benignant spirit of the laws of the United States merit attention. With regard to the mail, this inconsistency actually may occur under existing laws, should the mail ever again be carried by water as it has been formerly. This can not be consistent with the intention of the Legislature.

But it is contended, if Congress had not intended to make murder and robbery punishable with death, independently of the circumstance of those offenses being so made punishable when committed on land, they would have omitted those specified crimes altogether from this section, and have enacted generally that all crimes made punishable with death

2 DEFENCES.

on land should be punished with death if committed on the seas, without enumerating murder and robbery. This is fair reasoning; and in any case but one of life and death it might have some weight; but in no case very great weight, because, in that respect, a Legislature is subject to no laws in the selection of the course to be pursued. In this case the obvious fact is, that they commenced enumerating, and fearing some omission of crimes then supposed subject by law to death, these general descriptive words are resorted to. But every other crime that this division of the section comprises was punishable with death, both those which precede robbery in the enumeration and those which come after. Robbery, except in case of the mail, stands alone; and no doubt was introduced under the idea that that also had the same punishment attached to it. If it had not, in fact, then it was not the case on which the Legislature intended to act, and, according to my views of the grammatical or philological construction of the sentence, it is one on which they have not acted. This construction derives considerable force, also, from the consideration that this act is framed, on the model of the British statute, which avowedly had this uniformity for its object.

The second question proposed in this case is one on which, I presume, there can be no doubt. For the definition of robbery under this act we must look for the definition of the term in the common law, or we shall find it nowhere; and, according to my construction, superadd to that definition the circumstance of its being made punishable with death, under the laws of the United States, if committed on land, and you have described the offense made punishable under this section. There are eleven questions certified from the Circuit Court of Massachusetts; but of those eleven these two only appear to me to arise out of the case. The transcript contains nothing but the indictment and impaneling the jury. No motion, no evidence, no demurrer ore tenus, or case stated, appears upon the transcript, on which the remaining questions could arise. On the indictment the first two questions might well have been raised by the court themselves, as of counsel for the prisonbut as far as appears to this court, all the other questions might as well have been raised in any other case. I here enter my protest against having these general questions adjourned to this court. constituted to decide causes, and not to discuss themes or digest systems. It is true, the words of the act respecting division of opinion in the Circuit Court are general; but independently of the consideration that it was not to be expected that the court could be divided unless upon questions arising out of some cause depending, the words in the first proviso, "that the cause may be proceeded in," plainly show that

ers;

We are

7

the questions contemplated in the act are questions arising in a cause depending; and if so, it ought to be shown that they do arise in the cause, and are not merely hypothetical. In the case of Martin v. Hun

ter,1 this court expressly acted upon this principle, when it went into a consideration of the question whether any estate existed in the plaintiff in error, before it would consider the question on the construction of the treaty, as applicable to that estate.

If, however, it becomes necessary to consider the other questions in this case, I will lay down a few general principles, which, I believe, will answer all: 1. Congress can inflict punishment on offenses committed on board the vessels of the United States, or by citizens of the United States anywhere; but Congress can not make that piracy which is not piracy by the law of nations, in order to give jurisdiction to its own courts over such offenses.

2. When open war exists between a nation and its subjects, the subjects of the revolted country are no more liable to be punished as pirates than the subjects who adhere to their allegiance; and whatever immunity the law of nations gives to the ship, it extends to all who serve on board of her, excepting only the responsibility of individuals to the laws of their respective countries.

3. The proof of a commission it not necessary to exempt an individual serving on board a ship engaged in the war, because any ship of a belligerent may capture an enemy; and whether acting under a commission or not, is an immaterial question as to third persons; he must answer that to his own government. It is only necessary to prove two facts: 1. The existence of open war. 2. That the vessel is really documented, owned and commanded as a belligerent vessel, and not affectedly so for piratical purposes.

4. For proof of property and documents, it is not to be expected that any better evidence can be produced than the seal of the revolted country, with such reasonable evidence as the case may admit of to prove. it to be known as such; and a seal once proved or admitted to a court. ought afterwards to be acknowledged by the court officially, at least, as against the party who has once acknowledged it.

17 Cranch, 603, 1 Wheat. 304.

ELECTIONS-RESIDENCE-REMOVAL-QUALIFICATIONS.

MADDOX v. STATE.

[32 Ind. 111.]

In the Supreme Court of Indiana, November Term, 1869.

An Intention to Remove from the State alone or an absence on business with a subsequent return, do not lose the party his residence in the State, so as to make him guilty of illegal voting.

APPEAL from the Montgomery Common Pleas.

GREGORY, J. Information against the appellant for illegal voting. It was charged that the appellant had not been a resident of the State for six months preceding the election at which he voted. The defendant pleaded not guilty. The case was submitted to the court; finding guilty; motion for a new trial overruled. The evidence shows that the defendant, when about nine years old, was apprenticed to one Miller, a resident of Montgomery County; that at that time, he had neither father nor mother; that he had made his home at Miller's until he was about nineteen, at which time he left to go to Attica, in this State, where he fell in with a man going to Iowa, to whom he engaged himself as an assistant, in consideration of having his expenses paid to Iowa. He wrote letters to Miller, saying, that he was going to Iowa to see the country, and that he intended to return as soon as he had accomplished that object. He remained in Iowa about three years. Soon after he came of age, he wrote to Miller, that as soon as he could get money enough to pay his expenses he would return home. Whilst in Iowa, he worked for farmers on their farms, at different places. He said to a witness, after his return to this State, that he did not expect to remain. The court below, as we are informed by the bill of exceptions, found the defendant guilty on the ground that, being a minor during his stay with Miller, he could not gain a voting residence.

The residence of Miller, the master, was the residence of his apprentice, the appellant, for every purpose known to the law, and, whilst a minor, could not by leaving his master and going to another State change that residence. But after the defendant arrived at full age, he could elect to change his residence, and whether he did or did not in this case depended on his intention. If it was the intention of the appellant to return to this State, and he was only prevented from doing so by the lack of means to pay his expenses, and he did in fact return in accordance with his intention, then he never lost his residence in this State, although it was not his intention to remain here permanently.