United States v. Furlong
18 U.S. 184

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U.S. Supreme Court

United States v. Furlong, 18 U.S. 5 Wheat. 184 184 (1820)

United States v. Furlong

18 U.S. (5 Wheat.) 184

Syllabus

The eighth section of the Act of 30 April 1790, ch. 36, for the punishment of certain crimes against the United States is not repealed by the Act of 3 March 1819, ch. 76, to protect the commerce of the United States and punish the crime of piracy.

In an indictment for a piratical murder under the act of 30 April, 1790, ch. 36, s. 8, it is not necessary that it should allege the prisoner to be a citizen of the United States, nor that the crime was committed on board a vessel belonging to citizens of the United States, but it is sufficient to charge it as committed from on board such a vessel by a mariner sailing on board such a vessel.

A citizen of the United States fitting out a vessel in a port of the United States in order to cruise against a power in amity with the United States is not protected, by a commission from a belligerent from punishment for any offense committed against vessels of the United States.

The courts of the United States have jurisdiction of a murder committed on the high seas from a vessel belonging to the United States by a foreigner being on board of such vessel upon another foreigner being on board of a foreign vessel. It is not necessary to produce documentary evidence in order to prove the national character of a vessel on an indictment for piracy.

The courts of the United States have not jurisdiction of a murder committed by one foreigner on another foreigner, both being on board a foreign vessel.

It is competent, in an indictment for piracy, for the jury to find that a vessel within a marine league of the shore, at anchor in an open roadstead, where vessels only ride under shelter of the land at a season when the course of the winds is invariable, is upon the high seas.

The words "out of the jurisdiction of any particular state" in the act of 30 April, 1790, ch. 36, s. 8, must be construed to mean out of the jurisdiction of any particular state of the Union.

The Act of 3 March 1819, ch. 76, s. 5, furnishes a sufficient definition of piracy, and it is defined to be robbery on the seas.

A vessel loses her national character by assuming a piratical character, and a piracy committed by a foreigner from on board such a vessel upon any other vessel whatever is punishable under the eighth section of the Act of 30 April, 1790, ch. 36.

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On an indictment for piracy, the jury may find the national character of a vessel upon such evidence as will satisfy its mind, without the certificate of registry or other documentary evidence being produced and without proof of their having been seen on board.

On an indictment for piracy, the national character of a merchant vessel of the United States may be proved without evidence of her certificate of registry.

Each count in an indictment is a substantive charge, and if the finding of the jury conform to any one of the counts which, in itself, will support the verdict, it is sufficient and judgment may be given thereon.

These were several indictments in the Circuit Court of Georgia and South Carolina. The following are the cases as stated for the decision of this Court:

UNITED STATES v. JOHN FURLONG, alias HOBSON. The prisoner was indicted before the Circuit Court of Georgia for the piratical murder of Thomas Sunley, on the Act of Congress of 30 April, 1790, c. 36. Verdict, guilty. The offense was committed on a vessel and crew, all English. The person murdered was an English subject. The piratical vessel was a vessel of the United States, and run away with by the captain and crew. The prisoner is an Irishman and a subject of the King of Great Britain. It was moved by the prisoner's counsel, that the judgment be arrested on the following grounds, viz.,

Page 18 U. S. 186

1st. Because the indictment does not charge the prisoner as a citizen of the United States.

2d. Because the indictment does not charge the act as committed on board of an American vessel, but charges it as committed on board of a foreign vessel or vessel of owners unknown.

3d. Because the 8th section of the Act of 30 April, 1790, c. 36. is virtually repealed by the Act of 3 March, 1819, c. 76, to protect the commerce of the United States and punish the crime of piracy.

Upon which grounds, the judges being divided in opinion, at the request of the counsel for the prisoner, it was ordered that the indictment and proceedings thereon, together with the grounds of the defendant's motion in arrest of judgment, be transcribed by the clerk of the circuit court, and certified by him, under the seal of the court, and sent to this Court for its decision.

UNITED STATES v. JOHN FURLONG, alias HOBSON.

This was another indictment against the same prisoner before the same court on the Act of Congress of 30 April, 1790, c. 36, for the piratical murder of David May. Verdict, guilty. The same statement appears in the record, as in the case of the indictment of Furlong, for the murder of Thomas Sunley.

Page 18 U. S. 187

UNITED STATES v. JOHN FURLONG, alias HOBSON.

This was another indictment against the same prisoner before the same court on the Act of 3 March, 1819, c. 76, for the piratical seizure of an unknown vessel. Verdict, guilty. The offense was committed on a foreign vessel by a foreigner from a vessel of the United States which had been run away with by the captain and crew. It was moved by the prisoner's counsel that the judgment be arrested on the ground that, as the Constitution of the United States gives the power to Congress to define and punish the crime of piracy, it is necessary that Congress define before it can punish, and that a reference to the law of nations is not such a definition as the Constitution requires. Upon which ground, the judges being divided in opinion, upon request of counsel for prisoner, it was ordered that the indictment and proceedings thereon, together with the ground of the defendant's motion in arrest of judgment, be transcribed by the clerk of the circuit court and certified by him under the seal of the court and sent to this Court for its decision.

UNITED STATES v. JOHN FURLONG, alias HOBSON.

This was another indictment against the same prisoner before the same court on the Act of 30

Page 18 U. S. 188

April, 1790, c. 36, for a piratical robbery committed on an American ship. Verdict, guilty. The offense was committed on a vessel of the United States from a vessel of the United States which had been run away with by the captain and crew. The prisoner is an English subject. It was moved by the prisoner's counsel that the judgment be arrested on the ground that the 8th section of the Act of 30 April, 1790, c. 36, on which the indictment is founded, is virtually repealed by the Act of 3 March, 1819, c. 76, entitled, "an act to protect the commerce of the United States and punish the crime of piracy." Upon which ground the judges being divided in opinion, upon the request of the counsel for the prisoner it was ordered that the indictment and proceedings thereon, together with the grounds of the defendant's motion in arrest of judgment, be transcribed by the clerk of the circuit court and certified by him, under the seal of the court, and sent to this Court for its decision.

UNITED STATES v. BENJAMIN BRAILSFORD and JAMES GRIFFEN.

THE prisoners were indicted before the Circuit Court of South Carolina for piracy on an American ship under the Act of Congress of 30 April, 1790, c. 36. The court divided on the following questions:

1st. Whether an American citizen, fitting out a vessel in an American port, really to cruise against a power at peace with the United States, is protected by a commission from a belligerent from punishment

Page 18 U. S. 189

for any offense committed by him against vessels of the United States.

2d. Whether it is competent for a jury to find that a vessel within a marine league of the shore, at anchor in an open roadstead, where vessels only ride under shelter of the land at a season when the course of the winds is invariable, is upon the high seas.

3d. Whether the words "out of the jurisdiction of any particular state" in the 8th section of the Act of Congress of 30 April, 1790, c. 36, entitled "An act for the punishment of certain crimes against the United States" must be construed to mean out of the jurisdiction of any particular state of the United States.

4th. Whether the said 8th section of the said act is virtually repealed by the 5th section of the Act of Congress of March 3, 1819, c. 76.

5th. Whether the said 5th section of the said Act of March 3, 1819, c. 76, furnishes any and what definition of the crime of piracy.

UNITED STATES v. DAVID BOWERS and HENRY MATHEWS.

THE prisoners were indicted before the Circuit Court of Georgia under the Act of 30 April, 1790, c. 36, for a piratical robbery committed on an American ship. Verdict, guilty. The prisoners were part of the crew of the Louisa privateer who rose upon their officers in October, 1818, and putting them out of the ship, proceeded on a piratical cruise. The Louisa was commissioned by the Republic of

Page 18 U. S. 190

Buenos Ayres and commanded by Captain Almeida. There is no proof of her being American owned. The prisoners are American citizens, and the piracy for which they are convicted was committed on the ship Asia, bearing the American flag. The captain asserted himself and vessel to be American, and on her stern was painted "New York." The ship Asia, at the time of the robbery, was at anchor in an open roadstead at the Island of Bonavista. The register of the ship Asia was not produced in evidence. Verdict, guilty.

The prisoner's counsel moved that the judgment be arrested on the following grounds, viz.,

1st. That it is not competent to prove the national character of an American vessel without evidence of her register.

2d. It is not competent for the jury to find that the piracy was committed on the high seas when the evidence ascertained the Asia, at the time she was boarded, to have been at anchor in an open roadstead, at the Island of Bonavista.

3d. That the prisoners are not punishable under the 8th section of the act of 30 April, 1790, c. 36, entitled, "An act for the punishment of certain crimes against the United States," the same having been virtually repealed by the act of 1819, c. 76, to protect the commerce of the United States and to punish the crime of piracy.

4th. That there are two counts in the indictment, the first charging the offense to have been committed on the high seas out of the jurisdiction of any particular state; the second, charging the offense to

Page 18 U. S. 191

have been committed in a certain haven, near the Island of Bonavista, out of the jurisdiction of any particular state, and that it is not competent for a jury to find a general verdict of guilty on both counts.

Upon which grounds the judges being divided in opinion, it was ordered, that the indictment and proceedings thereon, together with the grounds of the motion in arrest of judgment, be transcribed by the clerk of the circuit court and certified by him under the seal of the court and sent to this Court for its decision.

UNITED STATES v. DAVID BOWERS and HENRY MATHEWS.

The prisoners were indicted before the circuit court of Georgia, under the act of 30 April, 1790, c. 36, for a piratical robbery committed on a ship, the property of British subjects, and called the Sir Thomas Hardy, upon the high seas. The prisoners were citizens of the United States and part of the crew of the Louisa privateer, mentioned in the preceding case. The prisoners were found guilty, and their counsel moved that the judgment be arrested upon the following grounds, viz.:

1st. That the Act of 30 April, 1790, c. 36, eighth section, does not extend to piracy committed by the crew of a foreign vessel on a vessel exclusively owned by persons not citizens of the United States.

2d. That the eighth section of the act of 30

Page 18 U. S. 192

April, 1790, c. 36, entitled "An act for the punishment of certain crimes against the United States," has been virtually repealed by the Act of 3 March, 1819, c. 76, entitled "An act to protect the commerce of the United States and to punish the crime of piracy."

Upon which grounds, the judges being divided in opinion, it was ordered, that the indictment and proceedings thereon, together with the grounds of the motion in arrest of judgment, be transcribed by the clerk of the circuit court and certified by him under the seal of the court and sent to this Court for their decision.

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