A robbery committed on the high seas, although such robbery if
committed on land would not by the laws of the United States be
punishable with death, is piracy, under the eighth section of the
Act of 1760, ch. 36, for the punishment of certain crimes against
the United States, and the circuit courts have jurisdiction
thereof.
The crime of robbery as mentioned in the act is the crime of
robbery as recognized at common law.
The crime of robbery committed by a person who is not a citizen
of the United State on the high seas on board of a ship belonging
exclusively to subjects of a foreign state is not piracy under the
act, and is not punishable in the courts of the United States.
When a civil war rages in a foreign nation one part of which
separates itself from the old established government and erects
itself into a distinct government, the courts of the union must
view such newly constituted government as it is viewed by the
legislative and executive departments of the government of the
United States.
If that government remains neutral but recognizes the existence
of a civil war, the courts of the union cannot consider as criminal
those acts of hostility which war authorizes and which the new
government may direct against its enemy.
The same testimony which would he sufficient to prove that a
vessel or person is in the service of an acknowledged state is
admissible to prove that they are in the service of such newly
erected government. Its seal cannot be allowed to prove itself, but
may be proved by such testimony as the nature of the case admits,
and the fact that a vessel or person is in the service of such
government may be established otherwise should it be impracticable
to prove the seal.
Page 16 U. S. 611
"At the Circuit Court of the United States for the First
Circuit, begun and holden at Boston within and for the
Massachusetts District on Wednesday, 15 October, 1817: "
"Before the honorable Joseph Story Associate Justice and John
Davis, District Judge."
"The jurors of the United States of America within and for the
district aforesaid, upon their oaths, do present that John Palmer
and Thomas Wilson, both late of Boston in the district aforesaid,
mariners, and Barney Colloghan, late of Newburyport in the
aforesaid district, mariner, with force and arms, upon the high
seas, out of the jurisdiction of any particular state, on the
fourth day of July now last past, did piratically and feloniously
set upon, board break, and enter a certain ship called the
Industria Raffaelli, then and there being a ship of
certain persons (to the jurors aforesaid unknown), and then and
there, piratically and feloniously, did make an assault in and upon
certain persons, being mariners, subjects of the King of Spain,
whose names to the jurors aforesaid are unknown, in the same ship,
in the peace of God, and of the said United States of America, then
and there being, and then there piratically and feloniously did put
the aforesaid persons, mariners of the same ship, in the ship
aforesaid then being, in corporal fear and danger of their lives,
then and there, in the ship aforesaid, upon the high seas
aforesaid, and out of the jurisdiction of any particular state, as
aforesaid, and piratically and feloniously did then and there
steal, take, and carry away five
Page 16 U. S. 612
hundred boxes of sugar of the value of $20,000 of lawful money
of the said United States; sixty pipes of rum, of the value of
$6,000, two hundred demijohns of honey of the value of $1,000; one
thousand hides of the value of $3,000; ten hogsheads of coffee of
the value of $2,000, and four bags of silver and gold of the value
of $60,000 of the like lawful money of the said United States of
America, the goods and chattels of certain persons (to the jurors
aforesaid, unknown), then and there, upon the high seas aforesaid,
and out of the jurisdiction of any particular state, being found in
the aforesaid ship, in custody and possession of the said mariners
in the said ship, from the said mariners of the same ship, and from
their custody and possession then and there upon the high seas
aforesaid, out of the jurisdiction of any particular state, as
aforesaid, against the peace and dignity of the said United States
and the form of the statutes of the United States in such ease made
and provided. And the jurors aforesaid, upon their oath aforesaid,
do further present that the aforesaid District of Massachusetts is
the district where the offenders aforesaid were first apprehended
for the said offense."
"To which indictment the prisoners pleaded not guilty, and upon
the trial the following questions occurred, upon which the opinions
of the said judges of the circuit court were opposed."
"1st. Whether a robbery committed upon the high seas, although
such robbery, if committed upon land, would not, by the laws of the
United States, be punishable
Page 16 U. S. 613
with death, is piracy under the eighth section of the act of
Congress, passed 30 April, A.D. 1790, and whether the circuit court
of the United States hath authority to take cognizance of, try, and
punish such offense?"
"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?"
"3d. Whether the crime of robbery, committed by persons who are
not citizens of the United States on the high seas on board of any
ship or vessel belonging exclusively to the subjects of any foreign
state or sovereignty or upon the person of any subject of any
foreign state or sovereignty not on board of any ship or vessel
belonging to any citizen or citizens of the United Stated 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?"
"4th. Whether the crime of robbery committed on the high seas by
citizens of the united states on board of any ship or vessel not
belonging to the United States or to any citizens of the United
States in whole or in part, but owned by and exclusively belonging
to, the subjects of a foreign state or sovereignty, or committed on
the high seas on the person of any subject of any foreign state or
sovereignty who is not at the time on board of any
Page 16 U. S. 614
ship or vessel belonging in whole or part to the United States
or to any citizen thereof be a robbery or piracy within the said
eighth section of the acts of Congress aforesaid and of which the
circuit court of the United States hath cognizance to hear, try,
and determine, and punish the same?"
"5th. Whether any revolted colony, district, or people which
have thrown off their allegiance to their mother country but have
never been acknowledged by the United States as a sovereign or
independent nation or power has authority to issue commissions to
make captures on the high seas of the persons, property and vessels
of the subjects of the mother country who retain their allegiance,
and whether the captures made under such commissions are, as to the
United States, to be deemed lawful, and whether the forcible
seizure, with violence and by putting in fear of the persons on
board of the vessels, the property of the subjects of such mother
country who retain their allegiance on the high seas, in virtue of
such commissions is not to be deemed a robbery or piracy within the
said eighth section of the act of Congress aforesaid?"
"6th. Whether an act which would be deemed a robbery on the high
seas if done without a lawful commission is protected from being
considered as a robbery on the high seas when the same act is done
under a commission or the color of a commission from any foreign
colony, district, or people which have revolted from their native
allegiance and have declared themselves independent and sovereign
and
Page 16 U. S. 615
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 United States or by any other foreign
state, prince, or sovereignty?"
"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
impossibility of producing either the original or such certified
copy must not be proved before any inferior and secondary evidence
of the existence of such commission is to be allowed on the trial
of such indictment before any court of the United States?"
"8th. Whether the 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
independent and sovereign, and actually exercise the powers of an
independent government
Page 16 U. S. 616
or nation, but have never been acknowledged 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?"
"10th. Whether any colony, district, or people who have revolted
from their native allegiance and have assumed upon themselves the
exercise of independent and sovereign power can be deemed, in any
court of the United States, an independent or sovereign nation or
government until they have been acknowledged as such by the
government of the United States, and whether such acknowledgement
can be proved in a court of the United States otherwise than by
some act or statute or resolution of the Congress of the United
States or by some public proclamation or other public act of the
executive authority of the United States directly containing or
announcing such acknowledgement, or by publicly receiving and
acknowledging an ambassador or other public minister from such
colony, district, or people, and whether such acknowledgement can
be proved by mere inference from the private acts or private
instructions of the executive of the United States when no public
acknowledgement has ever been made, and whether the courts of the
United States are bound judicially to take notice of the existing
relations of the United States as to foreign states and
sovereignties, their colonies, and dependencies?"
"11th. Whether in case of a civil war between a mother country
and its colony, the subjects of the different parties are to be
deemed, in respect to neutral
Page 16 U. S. 617
nations as enemies to each other, entitled to the rights of war,
and that captures made of each other's ships and other property on
the high seas are to be considered, in respect to neutral nations
as rightful, so that courts of law of neutral nations are not
authorized to deem such acts as piracy?"
"And the said judges, being so opposed in opinion upon the
questions aforesaid, the same were then and there, at the request
of the District Attorney for the United States, stated, under the
direction of the judges and ordered by the court to be certified
under the seal of the court to the Supreme Court at its next
session to be held thereafter, to be finally decided by said
Supreme Court, and the court being further of opinion, that further
proceedings could not be had in said cause without prejudice to the
merits of the same cause, did order that the injury empanelled as
aforesaid to try said cause, be discharged from giving any verdict
therein. "
Page 16 U. S. 626
MR. CHIEF JUSTICE MARSHALL 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 remaining seven questions, respect the rights of a colony or
other portion of an established empire which has proclaimed itself
an independent nation and is asserting and maintaining its claim to
independence by arms.
The 8th section of the act on which these prisoners were
indicted is in these words:
"And be it enacted that if any person or persons shall commit,
upon the high seas or in any river, haven, basin, or bay out of the
jurisdiction of any particular state, murder or robbery or any
other offense which, if committed within the body of a county,
would, by the laws of the United States, be punishable with death,
or if any captain or mariner of any ship or other vessel shall
piratically and feloniously run away with such ship or vessel, or
any goods or
Page 16 U. S. 627
merchandise, to the value of fifty dollars or yield up such ship
or vessel voluntarily to any pirate, or if any seaman shall lay
violent hands upon his commander, thereby to hinder and prevent his
fighting in defense of his ship, or goods committed to his trust,
or shall make a revolt in the ship, every such offender shall be
deemed, taken, and adjudged to be a pirate and felon, and being
thereof convicted, shall suffer death, and the trial of crimes
committed on the high seas or in any place out of the jurisdiction
of any particular state shall be in the district where the offender
is apprehended or into which he may first be brought."
Robbery committed on land not being punishable by the laws of
the United States with death, it is doubted whether it is made
piracy by this act when committed on the high seas. 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 construction by
rejected. That it so connects murder 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
Page 16 U. S. 628
consists of three distinct 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 offenses shall amount to piracy; there could be no other
motive for specifying them. The subsequent words do not appear to
be employed for the purpose of limiting piratical murder and
robbery to that description of those offenses which is punishable
with death if committed on land, but for the purpose of adding
other offenses, should there be any, which were not particularly
recited and which were rendered capital by the laws of the United
States if committed within the body of a county. Had the intention
of Congress been to render the crime of piracy dependent on the
punishment affixed to the same offense if committed on land, this
intention must have been expressed in very different terms from
those which have been selected. Instead of enumerating murder and
robbery as crimes which should constitute piracy and then
proceeding to use a general term comprehending other offenses, the
language of the legislature would have been that "any offense"
committed on the high seas which, if
Page 16 U. S. 629
committed in the body of a county, would be punishable with
death should amount to piracy.
The particular crimes enumerated were undoubtedly first in the
mind of Congress. No other motive for the enumeration can be
assigned. Yet on the construction contended for, robbery on the
high seas would escape unpunished. It is not pretended that the
words of the legislature ought to be strained beyond their natural
meaning for the purpose of embracing a crime which would otherwise
escape with impunity, but when the words of a statute, in their
most obvious sense, comprehend an 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 10th section extends the punishment of death to accessories
before the fact. They are described to be those who aid, assist,
advise, &c., any person to "commit any murder, robbery, or
other piracy aforesaid." If the word "aforesaid" be connected with
"murder" and "robbery," as well as with "other piracy," yet it
seems difficult to resist the
Page 16 U. S. 630
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 has 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 entertained. It must be understood in the
sense in which it is recognized and defined at common law.
The question whether this act extends further than to American
citizens, or to persons on board American vessels, or to offenses
committed against citizens of the United States is not without its
difficulties. The Constitution having conferred on Congress the
power of defining and punishing piracy, there can be no doubt of
the right of the legislature to enact laws punishing pirates,
although they may be foreigners and may have committed no
particular offense against the United States. The only
Page 16 U. S. 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 every
human being. But general words must not only be limited to cases
within the jurisdiction of the state, but also to those objects to
which the legislature intended to apply them. Did the legislature
intend to apply these words to the subjects of a foreign power who
in a foreign ship may commit murder or robbery on the high
seas?
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 United States.
The 8th section also commences with the words "any person or
persons." But these words must be
Page 16 U. S. 632
limited in some degree, 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 seaman on board
a ship sailing under a foreign flag, under the jurisdiction of a
foreign government, who should lay violent hands upon his commander
or make a revolt in the ship. These are offenses against the nation
under whose flag the vessel sails and within whose particular
jurisdiction all on board the vessel are. Every nation provides for
such offenses the punishment its own policy may dictate, and no
general words of a statute ought to
Page 16 U. S. 633
be construed to embrace them when 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 the sentence.
This construction derives aid from the 10th section of the act.
That section declares that "any person" who shall "knowingly and
wittingly aid and assist, procure, command, counsel, or advise, any
person or persons, to do or commit any murder or robbery, &c."
shall be an accessory before the fact, and on conviction shall
suffer death.
It will scarcely be denied that the words "any person," when
applied to aiding or advising a fact, are as extensive as the same
words when applied to the commission of that fact. Can it be
believed that the legislature intended to punish with death the
subject of a foreign prince who, within the dominions of that
prince, should advise a person, about to sail in the ship of his
sovereign, to commit murder or robbery? If the advice is not a
crime within the law, neither is the fact advised a crime within
the law.
The opinion formed by the Court on this subject might be still
further illustrated by animadversions on other sections of the act.
But it would be tedious and is thought unnecessary.
The Court is of opinion that the crime of robbery committed by a
person on the high seas on board of
Page 16 U. S. 634
any ship or vessel belonging exclusively to subjects of a
foreign state on persons within a vessel belonging exclusively to
subjects of a foreign state is not a piracy within the true intent
and meaning of the act for the punishment of certain crimes against
the United States.
This opinion will probably decide the case to which it is
intended to apply.
Those questions which respect the rights of a part of a foreign
empire which asserts and is contending for its independence and the
conduct which must be observed by the courts of the Union towards
the subjects of such section of an empire who may be brought before
the tribunals of this country are equally delicate and
difficult.
As it is understood that the construction which has been given
to the act of Congress will render a particular answer to them
unnecessary, the Court will only observe that such questions are
generally rather political than legal in their character. They
belong more properly to those who can declare what the law shall
be, who can place the nation in such a position with respect to
foreign powers as to their own judgment shall appear wise, to whom
are entrusted all its foreign relations than to that tribunal whose
power as well as duty is confined to the application of the rule
which the legislature may prescribe for it. In such contests a
nation may engage itself with the one party or the other -- may
observe absolute neutrality -- may recognize the new state
absolutely -- or may make a limited recognition of it. The
proceeding in courts must depend so entirely on the course of the
government
Page 16 U. S. 635
that it is difficult to give a precise answer to questions which
do not refer to a particular nation.
It may be said generally that if the government remains neutral
and recognizes the existence of a civil war, its courts cannot
consider as criminal those acts of hostility which war authorizes
and which the new government may direct against its enemy. To
decide otherwise would be to determine that the war prosecuted by
one of the parties was unlawful, and would be to arrange the nation
to which the court belongs against that party. This would transcend
the limits prescribed to the Judicial Department.
It follows as a consequence from this view of the subject that
persons or vessels employed in the service of a self-declared
government, thus acknowledged to be maintaining its separate
existence by war, must be permitted to prove the fact of their
being actually employed in such service by the same testimony which
would be sufficient to prove that such vessel or person was
employed in the service of an acknowledged state. The seal of such
acknowledged government cannot be permitted to prove itself, but it
may be proved by some testimony as the nature of the case admits,
and the fact that such vessel or person is employed may be proved
without proving the seal.
MR. JUSTICE JOHNSON.
The first of these questions arises on the construction of the
first division of the 8th section of the act for the punishment of
certain crimes.
Page 16 U. S. 636
That act comprises two classes of cases, the second of which may
again be subdivided into two divisions. In the second class of
cases, each crime is specifically described in the ordinary 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 persons shall commit upon the high seas . . . 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, . . . such person shall, upon conviction thereof, suffer
death,"
thus referring to the common law definition of murder and
robbery alone, or to the common law 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 mens' 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
Page 16 U. S. 637
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 no one can deny, and if so,
in favorem vitae,
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
Page 16 U. S. 638
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" made
punishable, &c., 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
Page 16 U. S. 639
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 merits
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 cannot 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 on land should be punishable 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
Page 16 U. S. 640
general descriptive words are resorted to. But every other crime
that this division of the section comprises was punishable with
death, both these 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 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 it has 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 will 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 empanelling of the jury. No motion, no evidence, no
demurrer
ore tenus or case stated, appears upon the
transcript on which the remaining questions could
Page 16 U. S. 641
arise. On the indictment, the two first questions might well
have been raised by the court itself, as of counsel for the
prisoners, but 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. We are 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 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.
Hunter, 7 Cranch 603, 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 cannot make that piracy which is not
piracy by
Page 16 U. S. 642
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 is 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: 1st, the existence of open war; 2d,
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.
CERTIFICATE. This cause came on to be heard on the transcript of
the record of the Circuit Court of the United States for the
District of Massachusetts,
Page 16 U. S. 643
and on the questions on which the judges of that court were
divided, and was argued by counsel on the part of the United
States. On consideration whereof this Court is of opinion that a
robbery committed on the high seas, although such robbery, if
committed on land, would not, by the laws of the United States, be
punishable with death, is piracy under the eighth section of an act
entitled "An act for the punishment of certain crimes against the
United States," and that the circuit courts of the United States
have jurisdiction thereof. And that the crime of robbery, as
mentioned in the said act of Congress, is the crime of robbery as
recognized and defined at common law
This Court is further of opinion that the crime of robbery
committed by a person on the high seas on board of any ship or
vessel belonging exclusively to subjects of a foreign state on
persons within a vessel belonging exclusively to subjects of a
foreign state is not piracy within the true intent and meaning of
the act entitled "An act for the punishment of certain crimes
against the United States," and is not punishable in the courts of
the United States.
This Court is further of opinion that when a civil war rages in
a foreign nation, one part of which separates itself from the old
established government and erects itself into a distinct
government, the courts of the union must view such newly
constituted government as it is viewed by the legislative and
executive departments of the government of the United States. If
the government of the union remains neutral but recognizes the
existence of a civil war, the courts
Page 16 U. S. 644
of the union cannot consider as criminal those acts of hostility
which war authorizes and which the new government may direct
against its enemy. In general, the same testimony which would be
sufficient to prove that a vessel or a person is in the service of
an acknowledged state must be admitted to prove that a vessel or
person is in the service of such newly erected government. Its seal
cannot be allowed to prove itself, but may be proved by such
testimony as the nature of the case admits. And the fact that a
vessel or person is in the service of such government may be
established otherwise should it be impracticable to prove the
seal.
All which is ordered to be certified to the Circuit Court of the
United States for the District of Massachusetts.
