the United States hath authority to take cog- | United States, or by any other foreign state, 2d. Whether the crime of robbery, mentioned in the said eighth section of the act of Congress aforesaid, is the crime of robbery, as recognized and defined at common law, or is dispunishable until it is defined and expressly punished by some act of Congress, other than the act of Congress above mentioned. 7th. Whether the existence of a commission to make captures, where it is set up as a defense to an indictment for piracy, must be proved by the production of the original commission, or of a certified copy thereof from the proper department of the foreign state or sovereignty by whom it is granted; or if not, whether the 3d. Whether the crime of robbery, commit-impossibility of producing either the original or ted by persons who are not citizens of the Unit- such certified copy must not be proved, before ed States, on the high seas, on board of any ship any inferior and secondary evidence of the exor vessel, belonging exclusively to the subjects istence of such commission is to be allowed, on of any foreign state or sovereignty, or upon the the trial of such indictment before any court person of any subject of any foreign state or of the United States. Sovereignty, not on board of any ship or vessel belonging to any citizen or citizens of the United States, be a robbery or piracy, within the true intent and meaning of the said eighth section of the act of Congress aforesaid, and of which the Circuit Court of the United States hath cognizance, to hear, try, determine, and punish the same. 8th. Whether a seal, purporting to be the seal of a foreign state or sovereignty, and annexed to any such commission, or a certified copy thereof, is to be admitted in a court of the United States as proving itself, without any other proof of its genuineness, so as to establish the legal existence of such commission from such foreign state or sovereignty. 9th. Whether a seal, annexed to any such commission, purporting to be the public seal used by the persons exercising the powers of government in any foreign colony, district, or people, which have revolted from their native allegiance, and have declared themselves indethe powers of an independent government or nation, but have never been ac- [*616 knowledged as such independent government or nation by the United States, is admissible in a court of the United States as proof of the legal existence of such commission, with or without further proof of the genuineness of such seal. 4th. Whether the crime of robbery com- be 10th. Whether any colony, district, or people, who have revolted from their native allegiance, 5th. Whether any revolted colony, district, and have assumed upon themselves the exeror people, which have thrown off their alle-cise of independent and sovereign power, can giance to their mother country, but have never be deemed, in any court of the United States, been acknowledged by the United States as a an independent or sovereign nation, or governsovereign or independent nation or power, have ment, until they have been acknowledged as authority to issue commissions to make cap- such by the government of the United States; tures on the high seas of the persons, property and whether such acknowledgment can and vessels of the subjects of the mother coun- proved in a court of the United States, othertry, who retain their allegiance; and whether wise than by some act or statute or resolution, the captures made under such commissions are, of the Congress of the United States, or by as to the United States, to be deemed lawful; some public proclamation, or other public act and whether the forcible seizure, with violence, of the executive authority of the United States, and by putting in fear of the persons on board directly containing or announcing such ac of the vessels, the property of the subjects of knowledgment, or by publicly receiving and such mother country, who retain their alle-acknowledging an ambassador, or other public giance, on the high seas, in virtue of such com- minister, from such colony, district, or people; missions, is not to be deemed a robbery or and whether such acknowledgment can be piracy within the said eighth section of the act proved by mere inference from the private acts of Congress aforesaid. or private instructions of the executive of the 6th. Whether an act, which would be deemed United States, when no public acknowledg a robbery on the high seas, if done without a ment has ever been made; and whether the lawful commission, is protected from being courts of the United States are bound judicially considered as a robbery on the high seas, when to take notice of the existing relations of the the same act is done under a commission, or United States, as to foreign states and soverthe color of a commission from any foreign eignties, their colonies, and dependencies. colony, district, or people, which have revolted 11th. Whether, in case of a civil war between from their native allegiance, and have de-a mother country and its colony, the subjects lared themselves independent and sovereign, of the different parties are to be deemed, in 615*] and *have assumed to exercise the powers and authorities of an independent and sovereign government, but have never been acknowledged, or recognized, as an independent or sovereign government, or nation, by the respect to neutral *nations, as enemies [*617 ANN Nor rightful, so that courts of law of neutral na- | ute, it would be perfectly immaterial whether tions are not authorized to deem such acts as the pronoun "which" was carried back to the piracy. words "murder and robbery," or whether it And the said judges, being so opposed in was confined to its immediate antecedent; beopinion upon the questions aforesaid, the same cause, in England, murder and robbery are were then and there, at the request of the Dis-punishable with death, when committed in the trict-Attorney for the United States, stated, un- body of a county, under the same laws which der the direction of the judges, and ordered by constitute them piracies when committed on the court to be certified under the seal of the the high seas. But such a construction of our court to the Supreme Court, at their next ses- statute would render it wholly inoperative as sion to be held thereafter, to be finally decided to the great offenses of murder and robbery, by said Supreme Court; and the court being which are not, and cannot be made punishable further of opinion that further proceedings under the laws of the United States, when could not be had in said cause without preju- committed within the body of a county. dice to the merits of the same cause, did order, can it be objected, that by the construction that the jury impaneled as aforesaid to try now contended for, the words "any other ofsaid cause be discharged from giving any ver- fense" would be equally inoperative; because dict therein. there are various offenses which would still be Mr. Blake, for the United States, argued: 1. reached by the statute, such as treason, etc., That a robbery committed on the high seas is for the punishment of which Congress may piracy, under the 8th section of the act of 1790, provide, though committed within the body of ch. 36, "for the punishment of certain crimes a county. It follows, as a corollary, that the against the United States," although no law of Circuit Court has cognizance of these offenses; the United States be subsisting for the punish- for, by the judiciary act of 1789, ch. 20, s. 11, ment of the same offense if committed on land; it has cognizance of "all crimes and offenses and that such piracy is cognizable in the Circuit cognizable under the authority of the United Court. The words of the statute are, "That if States." 2. The crime of robbery mentioned any person or persons shall commit, upon the in the 8th section of the act of 1790, is the high seas," etc., "murder or robbery, or any crime of robbery as understood at common other offense, which, if committed within the law. A piracy or felony on the high seas is body of a county, would, by the laws of the sufficiently defined by terming it a robbery 618*] United States, be punishable with committed on the high seas. *The im- [*620 death;" etc., "every such offender shall be port of the term "robbery" must be sought in deemed, taken, and adjudged to be a pirate the common law, in the same manner as the and felon, and being thereof convicted, shall import of the terms murder, manslaughter, suffer death," etc. The relative pronoun rescous, benefit of clergy, and many others that "which" does not relate back to the first are used in the criminal code of the United specified offenses of "murder or robbery," but States. 3. If the robbery in question amount refers only to its immediate antecedent, "any to piracy, by the law of nations, the words other offense." It is this last class of crimes "any person or persons," in the 8th section, only that must be punishable, by the laws of will embrace the subjects of all nations, who the United States, with death, if committed may commit that offense on the high seas, within the body of a county, in order to con- whether on board a foreign vessel or a vessel stitute them piracies, when committed on the belonging to citizens of the United States. high seas. It is a mistaken principle com- felony, which is made a piracy by municipal monly applied to penal statutes, that they are statutes, and was not such by the law of nato be construed strictly. Sir William Jones tions, cannot be tried by the courts of the has laid down the true rule, that criminal laws United States, if committed by a foreigner on are to be construed liberally as to the offense, board a foreign vessel, on the high seas; beand strictly as to the offender. A strong illus- cause the jurisdiction of the United States, betration of the good sense of this rule is to be yond their own territorial limits, only extends found in the construction which has been given to the punishment of crimes which are piracy in England to the Stabbing Act.2 A contrary by the law of nations. But it is the right and construction of the statute now under consid- the duty of the United States, as a member of eration would render it wholly inoperative, the community of nations, to punish offenses until there shall be a law of the United States committed on the high seas against the law of for the punishment of robbery committed in nations. By this statute, Congress have exerthe body of a county; which will never happen, cised this power, which is also conferred on as the United States have no constitutional au- them by the constitution. The offense of thority to punish a robbery committed within piracy, which is imperfectly defined by the law the body of a county. Forts, arsenals, dock of nations, is declared to be murder or robbery yards, etc., "under the sole and exclusive juris-committed on the high seas, or in any river, diction of the United States," cannot be said to be within the body of a county. It may be admitted that there is some degree of looseness 619*] in the phraseology of this section. which was evidently copied from the British statute of the 39 Geo. III. ch. 37, relative to the same subject, without regarding the difference between the constitutions of the two countries. On the construction of the British stat 1.-Life of Sir W. Jones, p. 268. ester's Crown Law, 297. A etc., out of the jurisdiction of any particular state; and is made punishable with death. Congress cannot be presumed to have neglected so important a duty as that of defining and punishing the offense of general piracy. *Without this statute, there can be 621 found no definition and punishment of it; because the law of nations merely creates the offense, and the common law and statute, 28 3.-4 Bl. Com. 71. Henry VIII. ch. 15, may perhaps not be con- perfect title to sovereignty, which cannot exist sidered as in force in the United States. 4. in a case where the very object of the war is to The crime of robbery committed by a citizen decide whether the claim of the former sovof the United States on the high seas, on board ereign or of the revolted people shall prevail. a foreign vessel, or on the person of a for- This title cannot be taken notice of by courts of eigner, must be considered as a piracy, under justice until it has been recognized by the govthe 8th section of the act; because the jurisdic-ernment of the country under whose authority tion of a nation extends to its citizens, where- they sit.3 6. If, then, a revolted colony or soever they may be, except within the territory people, whose independence has not been recof a foreign sovereign. The jurisdiction of a ognized by the government of the United States nation over its public ships is exclusive every-have no authority to issue a commission to where; but it is not exclusive over merchant make captures on the high seas, which can be vessels belonging to its subjects. It is there considered as valid in the courts of the United concurrent with the personal jurisdiction of States, a capture under such a commission is other nations over their citizens. Consequently in no respect distinguishable from a capture the personal jurisdiction of the United States without any commission. A privateer cruising over their citizens extends to offenses commit- under two commissions from different soverted by them on board of foreign merchant ves-eigns is a pirate. In the case of the famous sels on the high seas. 5. The general principle applied by the writers on the law of nations to the case of a civil war considers the war (as between the conflicting parties) as just on both sides, and that each is to treat the other as a public enemy, according to the established usages of war.2 pirate Kydd, the indictment was for general piracy. He had two commissions, one against the French, the other against certain pirates, which he produced in his justification. But Lord Chief Baron Ward said, "If he had acted pursuant to his commission, he ought to have condemned ship and goods, if they were French; So, also, it is the duty of other nations to re- but by his not condemning, he seems to show main neutral, and not to interfere with the ex- his aim, mind and intention, and that he did ercise of complete belligerent rights by both not act in that case by virtue of his comparties within the territory which is the scene mission, but quite contrary to it. Whilst of their hostilities. But this does not imply a *men pursue their commissions, they [*624 622*] *right on their part to push their wars must be justified; but when they do things not on to the ocean, and to annoy the rest of the authorized, or never intended by them, it is as world on this common highway of nations. if they had no commission." This principle, The generality of the expressions used by Vat- that where the criminal intention is apparent, tel on this subject may, indeed, seem to import the quality of the act will not be changed by such a right. But it should be remembered its having been committed under color of legal that, with all his merit, he is very deficient in authority, is illustrated by all the analogies of precision, and on this question peculiarly un-criminal law. 7. The established rules of evisatisfactory. The maritime rights of a bellig-dence ought not to be dispensed with in the erent power must be perfect, or they cannot proof of an authority to capture, where that exist at all. They must, therefore, include the authority is set up as a defense to an indictment right of visitation and search, and of detaining for piracy. All civilized nations have departfor adjudication, and of punishing a resistance ments and offices in which the commissions to the exercise of these rights by the appropri-issued to their cruisers are registered; the origate penalty of confiscation. So that neutral inal is borne about with him by the cruiser as nations may come to be affected in their most his authority to search, to detain, and to capvaluable interests by a mere domestic quarrel, ture; a copy of it may always be readily obwhich never ought to have been extended be-tained by application at the proper office. The yond the territory of the people where it originated. This renders it indispensable to inquire how far neutral nations are bound to submit to the exercise of these high prerogatives of sovereignty in a civil war, under color of a commission from one of the belligerent parties, whose independence has not been ac-ferior testimony, that there must be some fatal knowledged by any power. impossibility of producing the original, or an examined copy of such a commission, is, therefore, an inadmissible supposition. The rule of evidence which requires that it should be produced is inflexible, and is founded upon the reasonable suspicion, excited by a resort to in defect in the original documents. 8. There The right of an insurgent people to be treated can be no doubt that the seal of a recognized by the parent state, against which it revolts, foreign state or sovereignty is to be admitted with all the humanity and moderation which as proving itself, without other proof of its are required in any other war, and the duty of genuineness. But the seal of a new people, or neutral nations to abstain from interfering in state, is not sufficiently notorious to prove itthe contest, are not denied. But the right of self, and to give credit to it would be to recogthe new people to thrust themselves into the nize the sovereign from whom it emanates, family of nations, and to make the ocean the which courts of justice are not *compe- [*625 theatre of their predatory hostilities, without tent to do. 9. The ninth question certified the consent of other nations, is denied. Such from the court below has been already an623*] a right can only be founded *upon alswered. 10. The first branch of the tenth ques1.-2 Rutherford's Inst. 180, Vattel, L 2, ch. 6. 4.-2 Sir L. Jenkins's Life, 714; Ord. de la Mar. L. 3, t. 9, art. 3; Martens on Privateers, 44. 2.-Vattel, L. 3, ch. 18, s. 296. 3.-Rose v. Himely, 4 Cranch, 292; Gelston v. - State Trials, 314. 6.-2 East's Crown Law. 660: Forster. 125. 154. Hoyt, ante, p. 324. 312 tion has been before answered by this court in fender shall be deemed, taken, and adjudged the cases already cited.' The second branch of to be, a pirate and felon, and being thereof conthis question presupposes that no distinct ac-victed, shall suffer death; and the trial of knowledgment of the new state has been made crimes committed on the high seas, or in any by the United States, since it excludes from place out of the jurisdiction of any particular consideration any public act of recognition by state, shall be in the district where the offender the legislative and executive departments,. and is apprehended, or into which he may first be confines itself to the mere private acts and in-brought." structions of the executive. On a subject of Robbery committed on land, not being punsuch importance as a change in the foreign re-ishable by the laws of the United States, with lations of the country, nothing but the most ex-death, it is doubtful whether it is made piracy plicit, public, and notorious acts of the govern- by this act, when committed on the high seas. ment should be noticed by courts of justice. Nothing should be left to inference and conjecture; because, such a course might lead to a usurpation by the courts of the high prerogative of making war and peace, and the whole nation would become responsible to other nations for the error of judgment in a department with which it had not entrusted the care of its foreign affairs. In the infinite variety and complication of these affairs, the language and construction be rejected. That it so connects duct of the executive may be misunderstood; and therefore, nothing short of an act of the whole legislature, a treaty, a proclamation of the President, or the public reception of an ambassador from a new state, ought to be considered as a recognition of its independence. 11. 626*] The eleventh *question is involved in the discussion of the preceding. No counsel appeared to argue the cause for the prisoners. Marshall, Ch. J., delivered the opinion of the court: In this case, a series of questions has been proposed by the Circuit Court of the United States, for the District of Massachusetts, on which the judges of that court were divided in opinion. The questions occurred on the trial of John Palmer, Thomas Wilson and Barney Calloghan, who were indicted for piracy committed on the high seas. The first four questions relate to the construction of the 8th section of the "act for the punishment of certain crimes against the United States." The argument is understood to be, that Congress did not intend to make that a capital offense on the high seas which is not a capital offense on land. That only such murder, and such robbery, and such other offense as, if committed within the body of a county, would, by the laws of the United States, be punishable with death, is made piracy. That the word "other" is without use or meaning, if this conmurder and robbery with the following member of the sentence, as to limit the words murder and robbery to that description of those offenses which might be made punishable with death, if committed on land. That in consequence of this word, the relative "which" has for its antecedent the whole preceding part of the sentence, and not the words "other offenses." That section *consists of three distinct [*628 classes of piracy: The first, of offenses which. if committed within the body of a county, would be punishable with death. The second and third, of particular offenses which are enumerated. This argument is entitled to great respect on every account; and to the more, because, in expounding a law which inflicts capital punishment, no over-rigid construction ought to be admitted. But the court cannot assent to its correctness. The legislature having specified murder and robbery particularly, are understood to indicate clearly the intention that those offences shall amount to piracy; there could be no other moThe remaining seven questions respect the tive for specifying them. The subsequent rights of a colony or other portion of an estab- words do not appear to be employed for the lished empire, which has proclaimed itself an purpose of limiting piratical murder and robindependent nation, and is asserting and main-bery to that description of those offenses which taining its claim to independence by arms. is punishable with death, if committed on land. The 8th section of the act on which these but for the purpose of adding other offenses. prisoners were indicted is in these words: should there be any, which were not particu"And be it enacted, that if any person or per- larly recited, and which were rendered capital sons shall commit, upon the high seas, or in by the laws of the United States, if committed any river, haven, basin or bay, out of the juris- within the body of a county. Had the intendiction of any particular state, murder or rob- tion of Congress been to render the crime of bery, or any other offense, which, if committed piracy dependent on the punishment affixed to within the body of a county, would, by the the same offense, if committed on land, this inlaws of the United States, be punishable with tention must have been expressed in very differdeath; or if any captain or mariner of any ship ent terms from those which have been selected. or other vessel, shall piratically and feloniously Instead of enumerating murder and robbery as run away with such ship or vessel, or any goods crimes which should constitute piracy, and 627* or *merchandise, to the value of fifty then proceeding to use a general term, compredollars, or yield up such ship or vessel volun-hending other offenses, the language of the leg. tarily to any pirate; or if any seamen shall lay islature would have been, that "any offense" violent hands upon his commander, thereby to committed on the high seas, which. if hinder and prevent his fighting in defense of *committed in the body of a county, [*629 his ship, or goods committed to his trust, or would be punishable with death, should shall make a revolt in the ship; every such of- amount to piracy. 1.-Rose v. Himely, 4 Cranch, 292; Gelston v. Hoyt, ante, p. 324. The particular crimes enumerated were undoubtedly first in the mind of Congress. No other motive for the enumeration can be as signed. Yet, on the construction contended for, | every human being. But general words must robbery on the high seas would escape unpun- not only be limited to cases within the jurisdicished. It is not pretended that the words of tion of the state, but also to those objects to the legislature ought to be strained beyond which the legislature intended to apply them. their natural meaning, for the purpose of em- Did the legislature intend to apply these words bracing a crime which would otherwise escape to the subjects of a foreign power, who in a forwith impunity; but when the words of a stat- eign ship may commit murder or robbery on ute, in their most obvious sense, comprehend an the high seas? offense, which offense is apparently placed by the legislature in the highest class of crimes, it furnishes an additional motive for rejecting a construction, narrowing the plain meaning of the words, that such construction would leave the crime entirely unpunished. The correctness of this exposition of the 8th section is confirmed by those which follow. The 9th punishes those citizens of the United States who commit the offenses described in the 8th, under color of a commission or authority derived from a foreign state. Here robbery is again particularly specified. The title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the legislature. The title of this act is, "an act for the punishment of certain crimes against the United States." It would seem that offenses against the United States, not offenses against the human race, were the crimes which the legislature intended by this law to punish. The act proceeds upon this idea, and uses general terms in this limited sense. In describing those who may commit misprision of treason or felony, the words used are "any person or persons;" yet these words are necessarily confined to any person or persons owing permanent or temporary allegiance to the Unit The 10th section extends the punishment of death to accessories before the fact. They are described to be those who aid, assist, advise, etc., etc., any person to "commit any murder, ed States. robbery, or other piracy aforesaid." If the The 8th section also commences with the word "aforesaid" be connected with "murder" words "any person or persons." But these and "robbery," as well as with "other piracy," 630*] yet it seems difficult to resist the *conviction that the legislature considered murder and robbery as acts of piracy. The 11th section punishes accessories after the fact. They are those who, "after any murder, felony, robbery, or other piracy whatsoever, aforesaid," shall have been committed, shall furnish aid to those by whom the crime ha; been perpetrated. Can it be doubted that the legislature considered murder, felony, and robbery, committed on the high seas, as piracies? If it be answered, that although this opinion was entertained, yet, if the legislature was mistaken, those whose duty it is to construe the law must not yield to that mistake; we say, that when the legislature manifests this clear understanding of its own intention, which intention consists with its words, courts are bound by it. Of the meaning of the term robbery, as used in the statute, we think no doubt can be enter- | tained. It must be understood in the sense in which it is recognized and defined at common law. words must be *limited in some degree, [*632 and the intent of the legislature will determine the extent of this limitation. For this intent we must examine the law. The succeeding member of the sentence commences with the words, "if any captain or mariner of any ship or other vessel, shall piratically run away with such ship or vessel, or any goods or merchandise, to the value of fifty dollars, or yield up such ship or vessel voluntarily to any pirate." The words "any captain, or mariner of any ship or other vessel," comprehend all captains and mariners, as entirely as the words "any person or persons" comprehend the whole human race. Yet it would be difficult to believe that the legislature intended to punish the captain or mariner of a foreign ship, who should run away with such ship, and dispose of her in a foreign port, or who should steal any goods from such ship to the value of fifty dollars, or who should deliver her up to a pirate when he might have defended her, or even according to previous arrangement. The third member of the sentence also begins with the general words "any seaman." But it cannot be supposed that the legislature intended to punish a seaThe question, whether this act extends far- man on board a ship sailing under a foreign ther than to American citizens, or to persons on flag, under the jurisdiction of a foreign governboard American vessels, or to offenses commit- ment, who should lay violent hands upon his ted against citizens of the United States, is not commander, or make a revolt in the ship. without its difficulties. The constitution hav- These are offenses against the nation under ing conferred on Congress the power of defin- whose flag the vessel sails, and within whose ing and punishing piracy, there can be no doubt particular jurisdiction all on board the vessel of the right of the legislature to enact laws are. Every nation provides for such offense punishing pirates, although they may be for- the punishment its own policy may dictate, and eigners, and may have committed no particular no general words of a statute ought to offense against the United States. The only 631*] *question is, has the legislature enacted such a law? Do the words of the.act authorize the courts of the Union to inflict its penalties on persons who are not citizens of the United States, nor sailing under their flag, nor offending particularly against them? The words of the section are in terms of unlimited extent. The words "any person or persons" are broad enough to comprehend be construed to embrace them when [*633 committed by foreigners against a foreign government. That the general words of the two latter members of this sentence are to be restricted to offenses committed on board the vessels of the United States, furnishes strong reason for believing that the legislature intended to impose the same restriction on the general words used in the first member of that sentence. |