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repealed by the Act of 3 March 1819, ch. 76, to protect the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.
Page 18 U. S. 185
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.
MR. JUSTICE JOHNSON delivered the opinion of the Court.
A variety of questions have been referred to this Court in these
cases, and in the decisions to be certified to the circuit court it
will be necessary to notice each question in every case, but in the
opinion now to be expressed the whole may be considered in
connection, as they all depend upon the construction of the same
laws.
In the two cases of
Smith and
Klintock, it has
been already adjudged that the 8th section of the act of 1790 was
not repealed by the 5th section of that of 1819, and that the
decision in
Palmer's Case,
3 Wheat. 610, does not apply to the case of a crew whose
conduct
Page 18 U. S. 193
is such as to set at nought the idea of thus acting under
allegiance to any acknowledged power. From which it follows that
when embarked on a piratical cruise, every individual becomes
equally punishable under the law of 1790, whatever may be his
national character or whatever may have been that of the vessel in
which he sailed or of the vessel attacked.
This decision furnishes an answer to all those questions made in
the above cases, which are founded on distinctions in the national
character of the prisoner or in that of the vessels in relation to
the piracies committed by the crew of the
Louisa. The
moment that ship was taken from her officers and proceeded on a
piratical cruise, the crew lost all claim to national character
and, whether citizens or foreigners, became equally punishable
under the act of 1790. It also furnishes an answer to all the
exceptions taken in the case of piracy charged against Furlong. For
whatever the court might have thought on the effect of the act of
1819, he would have been still punishable under the act of 1790.
The indictment against him is general, against the form of the
statute in such case made and provided, and it matters not that his
offense was committed subsequent to passing the act of 1819, since
the other act still remains in force and reaches his case.
It would seem to be unnecessary to go further in the cases
against Furlong, as this conclusion decides his fate; but this
Court cannot foresee how far it may be necessary to the
administration of justice, against accessories or otherwise, that
the question in the cases of murder should also be decided.
Page 18 U. S. 194
The question whether murder committed at sea on board a foreign
vessel be punishable by the laws of the United States if committed
by a foreigner upon a foreigner is one which involves a variety of
considerations, and which, in the two cases before us, is presented
under an obvious distinction -- on the one indictment it appears as
having been committed simply on board the
Anne of
Scarborough, a foreign vessel, by a foreigner upon a
foreigner; on the other, as committed on board the
Anne of
Scarborough, from an American vessel by a mariner of the
American vessel. It is obvious that neither case comes within the
express words of the decision in
Palmer's Case. And with
regard to the case in which the American vessel is brought in view,
there can exist but one difficulty.
No difference can be supposed to exist between the case of a
murder committed on the seas by means of a gun discharged from a
vessel, and by means of a boat's crew dispatched for that purpose,
as was actually the case here. And as to the right of the United
States to punish all offenses committed on or from on board their
own vessels, it cannot be doubted, nor has it been doubted that the
act of 1790 extends to such offenses when committed on the seas.
But we have decided that in becoming a pirate, the
Mary of
Mobile, from which the prisoner committed this offense, lost
her national character. Could she then be denominated an American
vessel?
We are of opinion that the question is immaterial, for whether
as an American or a pirate ship, the offense
Page 18 U. S. 195
committed from her was equally punishable, and the words of the
act extend to her in both characters. But if it were necessary to
decide the question, we should find no difficulty in maintaining
that no man shall, by crime, put off an incident to his situation
which subjects him to punishment. A claim to protection may be
forfeited by the loss of national character where no rights are
acquired or immunity produced by that cause. The other case
presents a question of more difficulty. It includes the case of a
murder committed by one of a crew upon another on board a foreign
vessel on the high seas. The prisoner is a British subject, the
deceased was the same, and the ship also British.
This, though not in all its circumstances the same, is in
principle precisely that of
United States v. Palmer. The
only difference is that the case of
Palmer supposes the
prisoner and the deceased to belong to different vessels, and the
certificate of the court would seem to cover the case of an
American as well as a foreigner who commits an offense on board a
foreign vessel.
So far as relates to the point now under consideration, I have
no objection to accede to the decision in the case of
Palmer. I did not unite in the opinion of the Court in
that case on this point, because I thought it was carried too far
in being extended to piracy as well as murder and to American
citizens as well as foreigners. To me it appears that the only fair
deduction from the obvious want of precision in language and in
thought discoverable in the act of 1790 and insisted on in the case
of
Palmer is that in
Page 18 U. S. 196
construing it, we should test each case by a reference to the
punishing powers of the body that enacted it. The reasonable
presumption is that the legislature intended to legislate only on
cases within the scope of that power, and general words made use of
in that law ought not in my opinion to be restricted so as to
exclude any cases within their natural meaning. As far as those
powers extended, it is reasonable to conclude that Congress
intended to legislate unless their express language shall preclude
that conclusion.
It is true that the 8th section declares murder as well as
robbery to be piracy; but in my view, if anything is to be inferred
from this association, it is only that they meant to assert the
right of punishing murder to the same extent that they possessed
the right of punishing piracy, which would be carrying the
construction beyond what I contend for. The contrary conclusion,
viz., that they meant to limit the cases of piracy made
punishable under that act to the cases in which they might, upon
principle, punish murder is rebutted by the generality of the terms
used, and it would seem that with this object in view, they ought
to have taken the contrary course and declared piracy to be
murder.
It is obvious that the penman who drafted the section under
consideration acted from an indistinct view of the divisions of his
subject. He has blended all crimes punishable under the admiralty
jurisdiction in the general term of piracy. But there exist well
known distinctions between the crimes of piracy and murder, both as
to constituents and
Page 18 U. S. 197
incidents. Robbery on the seas is considered as an offense
within the criminal jurisdiction of all nations. It is against all
and punished by all, and there can be no doubt that the plea of
autre fois acquit would be good in any civilized state
though resting on a prosecution instituted in the courts of any
other civilized state. Not so with the crime of murder. It is an
offense too abhorrent to the feelings of man to have made it
necessary that it also should have been brought within this
universal jurisdiction. And hence punishing it when committed
within the jurisdiction or (what is the same thing) in the vessel
of another nation has not been acknowledged as a right, much less
an obligation. It is punishable under the laws of each state, and I
am inclined to think that an acquittal in this case would not have
been a good plea in a court of Great Britain. Testing my
construction of this section, therefore, by the rule that I have
assumed, I am led to the conclusion that it does not extend the
punishment for murder to the case of that offense committed by a
foreigner upon a foreigner in a foreign ship. But otherwise as to
piracy, for that is a crime within the acknowledged reach of the
punishing power of Congress. As to our own citizens, I see no
reason why they should be exempted from the operation of the laws
of the country, even though in foreign service. Their subjection to
those laws follows them everywhere; in our own courts they are
secured by the Constitution from being twice put in jeopardy of
life or member, and if they are also made amenable to the
Page 18 U. S. 198
laws of another state, it is the result of their own act in
subjecting themselves to those laws.
Nor is it any objection to this opinion that the law declares
murder to be piracy. These are things so essentially different in
their nature that not even the omnipotence of legislative power can
confound or identify them. Had Congress in this instance declared
piracy to be murder, the absurdity would have been felt and
acknowledged; yet with a view to the exercise of jurisdiction, it
would have been more defensible than the reverse, for in one case
it would restrict the acknowledged scope of its legitimate powers,
in the other extend it. If by calling murder piracy it might assert
a jurisdiction over that offense committed by a foreigner in a
foreign vessel, what offense might not be brought within their
power by the same device? The most offensive interference with the
governments of other nations might be defended on the precedent.
Upon the whole, I am satisfied that Congress neither intended to
punish murder in cases with which they had no right to interfere
nor leave unpunished the crime of piracy in any cases in which they
might punish it, and this view of the subject appears to me to
furnish the only sufficient key to the construction of the 8th
section of the act of 1790.
As to piracy, since the decision that a vessel, by assuming a
piratical character, is no longer included in the description of a
foreign vessel, no case of difficulty can occur unless the piracy
be committed by the crew of a foreign vessel upon their own vessel
or by persons issuing immediately from shore. If
Page 18 U. S. 199
such cases occur under the act of 1790, I shall respectfully
solicit a revision of
Palmer's Case if it be considered as
including those cases. And shall do the same in the case of murder
committed by an American in a foreign ship if it ever occur, under
the belief that it never could have been the intention of Congress
that such an offender should find this country a secure asylum to
him.
There are a few minor points presented in these cases which it
is necessary to notice.
It was moved in favor of the prisoners that the only legal
testimony of the character of the ships plundered must have
relation to their register, or rather to the documentary papers
which establish their national character. But this we think wholly
indefensible. It is obvious that such testimony might be suppressed
in various ways by the aggressors. Nor is it at all decisive of the
real ownership of a vessel. Our laws recognize the possibility of
the register's existing in the name of one whilst the property is
really in another person. The laws that require such documents to
be on board a vessel have relation to financial, commercial, or
international objects, but are not decisive or necessary in a
prosecution for this offense. Property or character is a matter
in pais, and so to be established. However, it is
unnecessary to examine the question further, as we have decided
that the national character of the vessels plundered was in these
cases wholly immaterial to the crime.
It was also moved in two of the cases of piracy that as the
offenses charged were committed on vessels
Page 18 U. S. 200
then lying at anchor near the shore of the Islands of Mayo and
Bonavista in a road, and within a marine league of the shore, the
prisoners could not be convicted:
1. Because the words, "out of the jurisdiction of any particular
state" in the 8th section of the act of 1790 includes foreign, as
well as domestic states.
2. Because a vessel at anchor in a road is not a vessel on the
high seas, as charged in the indictment.
On the first point, we think it obvious that "out of any
particular state" must be construed to mean "out of any one of the
United States." By examining the context, it will be seen that
particular state is uniformly used in contradistinction to United
States. For what reason it is not easy to imagine, but it is
obvious that the only piracies omitted to be punished by that act
are land piracies and piracies committed in our waters.
On the second point, we are of opinion that a vessel in an open
road may well be found by a jury to be on the seas. It is
historically known that in prosecuting trade with many places,
vessels lie at anchor in open situations (and especially where the
trade winds blow) under the lee of the land. Such vessels are
neither in a river, haven, basin or bay, and are nowhere unless it
be on the seas. Being at anchor is immaterial, for this might
happen in a thousand places in the open ocean, as on the Banks of
Newfoundland. Nor can it be objected that it was within the
jurisdictional limits of a foreign state,
Page 18 U. S. 201
for those limits, though neutral to war, are not neutral to
crimes.
It was also moved in the same cases that as there were two
counts in the indictment, the one charging the offenses as
committed on the high seas, the other in a haven, basin or bay, a
general verdict of guilty could not be sustained on account of
repugnancy and inconsistency, as both facts could not be true. But
on this it is only necessary to remark that each count is a
distinct substantive charge. Internal repugnancy in any one is a
good exception, but
non constat as to the whole, taken
severally, but each may be for a distinct offense.
There is finally another question certified to this Court in one
of the cases which arose under the captures made by the
Louisa. It is 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
power belligerent as to the power against which he undertakes to
cruise, from offenses committed by him against the United
States?
It will be seen that the object of this question is to bring the
whole crew of the
Louisa under the immunities which it is
supposed Almeida might have claimed by virtue of his commission.
But having decided that the vessel and crew had forfeited all
pretensions to national or belligerent character, this question is
anticipated. Yet lest the ingenious views on this point presented
to the Court by one of the gentlemen who argued it should tempt the
unwary into practices that may be fatal to them, we think it
Page 18 U. S. 202
proper to remark that in
Klintock's Case it has been
decided that a belligerent character may be put off and a piratical
one assumed even under the most unquestionable commission. And if
the laws of the United States declare those acts piracy in a
citizen when committed on a citizen which would be only belligerent
acts when committed on others, there can be no reason why such laws
should not be enforced. For this purpose the 9th section of the act
of 1790 appears to have been passed. And it would be difficult to
induce this Court to render null the provisions of that clause by
deciding either that one who takes a commission under a foreign
power can no longer be deemed a citizen or that all acts committed
under such a commission must be adjudged belligerent, and not
piratical, acts.
UNITED STATES v. JOHN FURLONG, alias JOHN HOBSON.
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 Georgia, and on the question on which the judges of
that court were divided in opinion, and was argued by counsel. On
consideration whereof, this Court is of opinion that the 8th
section of the act of 30 April, 1790, on which the indictment is
founded, is not repealed by the act of 3 March, 1819, entitled, "an
act to protect the commerce of the United States, and to punish the
crime of piracy."
Page 18 U. S. 203
UNITED STATES v. JOHN FURLONG, alias JOHN HOBSON.
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 Georgia and on the questions on which the judges of
that court were divided in opinion, and was argued by counsel. On
consideration whereof this Court is of opinion, as to the first and
second questions stated by said circuit court, that it was not
necessary the indictment should charge the prisoner as a citizen of
the United States, nor the crime as committed on board an American
vessel, inasmuch as it charges it to have been committed from on
board an American vessel by a mariner sailing on board an American
vessel. And as to the third question, that the Act of 30 April,
1790, is not virtually repealed by the Act of 3 March, 1819,
entitled, "an act to protect the commerce of the United States, and
punish the crime of piracy."
UNITED STATES v. GRIFFEN and BRAILSFORD.
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 South Carolina and on the questions on which the judges
of that court were divided in opinion, and was argued by counsel.
On consideration whereof this Court
Page 18 U. S. 204
is of opinion
1. That an American citizen fitting out a vessel in an American
port really to cruise against a power at peace with the United
States is not protected by a commission from a belligerent from
punishment for any offense committed by him against vessels of the
United States.
2. 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 the shelter of the land, at a season when
the course of the winds is invariable, is upon the high seas.
3. That the words "out of the jurisdiction of any particular
state" in the 8th section of the Act of Congress of 30 April, 1790,
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.
4. That the 8th section of the Act of 30 April, 1790, entitled
"an act for the punishment of certain crimes against the United
States" is not repealed by the 8th section of the Act of 3 March,
1819, entitled, "an act to protect the commerce of the United
States, and to punish the crime of piracy."
5. That the 5th section of the Act of 3 March, 1819, furnishes a
sufficient definition of piracy, and that it is defined "robbery on
the seas."
6. That considering this question, with reference to the case
stated, the 8th section of the act of 1790 comprises the case of
piracy committed by a foreigner in a foreign vessel upon any
vessel, so as to
Page 18 U. S. 205
make him punishable with death inasmuch as both vessel and crew
no longer retained any pretension to national character after
assuming that of a pirate.
7. That the national character of a vessel is a fact which a
jury may find upon such evidence as will satisfy its mind without
production of the register or proof of its having been on board of
her.
8. That the 8th question is answered in the answer given to the
fourth question.
UNITED STATES v. DAVID BOWERS and HENRY MATHEWS.
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 Georgia and on the questions on which the judges of
that court were divided in opinion and was argued by counsel. On
consideration whereof this Court is of opinion
1. that the act of 30 April, 1790, entitled, &c., section
8th, does extend to piracy committed by the crew of a foreign
vessel on a vessel exclusively owned by persons not citizens of the
United States, in the case of these prisoners, in which it appears
that the crew assumed the character of pirates, whereby they lost
all claim to national character or protection.
2. That the 8th section of the act of 30 April, 1790, entitled,
&c., has not been repealed by the 8th section of the act of
March 3, 1819, entitled, &c.
Page 18 U. S. 206
UNITED STATES v. DAVID BOWERS and HENRY MATHEWS.
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 Georgia and on the questions on which the judges of
that court were divided in opinion, and was argued by counsel. On
consideration whereof, this Court is of opinion
1. That it is competent to prove the national character of an
American vessel without evidence of her register.
2. That it is competent for the jury to find that the piracy was
committed on the high seas upon evidence that the
Asia, at
the time she was boarded, was at anchor in an open roadstead at the
Island of Bonavista.
3. That the 8th section of the Act of 30 April, 1790, entitled,
&c., is not repealed by the 8th section of the Act of March 3,
1819, entitled, &c.
4. That each count in an indictment is a substantive charge, and
if the finding conform to anyone of them which in itself will
support the verdict, it is sufficient to give judgment.
