Lyle v. Rodgers.

they have decided), but also of the right to use it in the settlement of her accounts, as conclusive evidence that the money was paid in her representative character. If this objection to the award is to be overruled, it must be on the supposition, that it is made against her personally; yet the statement of facts shows the claim against her to be in her representative character. There is certainly a want of precision in this part of the award, which exposes it to solid objection, and might subject Mrs. Dennison to serious inconvenience.

The second exception to which this court will advert, affects still more deeply the merits of the award, as well as its justice. It is apparent from the pleadings in the cause, from the facts stated, and from the award

itself, that titles to land were deposited by Gideon Dennison, in his [*408 lifetime, with the plaintiffs, as collateral security for the debt claimed by them and that the conveyances purported to be absolute. Not only was there uncertainty so as to right of redemption; but it was, so far as the court can discover, absolutely uncertain what lands had been conveyed. This subject appears to have been brought before the arbitrators, and they have awarded upon it. Is their award sufficiently certain, to give Jerusha Dennison the benefit they intended her? They have awarded "that the said Joshua B. Bond and James Lyle shall reconvey or release, as the case may require, all lands heretofore conveyed or pledged to them by the late Gideon Dennison, as a collateral security." The award does not determine what lands were so conveyed. If the arbitrators had directed that all the lands conveyed or pledged by Gideon Dennison should be reconvey, there would have been some difficulty in ascertaining what lands had been conveyed or pledged, from the uncertainty where deeds might have been recorded, and whether grants might not have been deposited, without a conveyance; but they have directed that those lands only shall be reconveyed, which have been conveyed or pledged as collateral security. No one of these deeds exhibited on its face any mark of its being made as a collateral security. The question whether a conveyance was absolute, or as a security only, was a material question, which ought to have been decided by the arbitrators. They have not decided *it, but have left it open to be decided by [*409 the parties themselves, or by some other tribunal. This is a very important part of the award, and with respect to this subject, it is incomplete. It is obviously as uncertain now, as it was before the award was made, what lands had been conveyed or pledged to Gideon Dennison as collateral security. This part of the award then is void, and the question is, whether that part which directs the payment of money be void also ?

That an award may be void in part, and good for the residue, will be readily admitted; but if that part which is void be so connected with the rest as to effect the justice of the case between the parties, the whole is void (Kyd 246). There is great good sense in this distinction. If A. be directed to pay B. $100, and also to do some other act, not well enough defined to be obligatory, there is no reason why B. should not have his $100, because he cannot also get that other thing which was intended for him. But if A. be directed to pay B. $100, and B. to do something for the benefit of A. which is not so defined as to enable A. to obtain it, there is much reason why A. should not pay the $100; since he cannot obtain that which the arbitrators as much intended he should receive, as that he should pay the sum

Lyle v. Rodgers.

awarded against him. The cause in 2 Saund. 292, is in point. In that case, the arbitrators awarded, that William Pope *should be satisfied *410] and paid by John Brett, the money due and payable to the said William Pope, as well for task-work as for day-work, and then the said William should paid to the said John the sum of £25, lawful money of England. Mutual releases were also awarded. It was admitted, that so much of the award as directed payment to be made for task-work and day-work, was void for uncertainty, inasmuch as the arbitrator had not ascertained how much was to be paid on those accounts; but it was contended, that the award was good for the residue, inasmuch as enough remained to make it mutual. But the court said, "that if the clause of task-work and day-work be void, as it is admitted to be, the whole award is void, for it appears that William Pope was awarded to pay the £25, and to give a general release, upon a supposition by the arbitrator, that he should be paid the task-work and day-work, by virtue of that award, and that not being so, it was not the intention of the arbitrators, as appears by the award itself, that he should pay the money, and give a general release, and yet receive nothing for the task-work and day-work, as by reason of the uncertainty of the award in that part he could not."

The application of this case to that under consideration is complete. The award to reconvey all lands heretofore conveyed or pledged to the plaintiffs by Gideon Dennison, in his lifetime, as collateral security, is as uncertain as the award to pay for task-work and day-work already per

formed; it was as much *the intention of the arbitrators that the parts

*411] of their award which were favorable to the different parties should be

dependent on each other in this case, as in the case of Pope v. Brett. The arbitrators never could have designed that Bond and Lyle should get their money, and retain their deposits. In his note upon this case, Sergeant Williams says, "If, by the nullity of the award in any part, one of the parties cannot Lave the advantage intended him as a recompense or consideration, for that which he is to do to the other, the award is void in the whole." This just principle must always remain a part of the law of awards.

The objection to the part of the award which has been considered, applies equally to that part of it which respects bonds, notes, bills or other securities. Judgment affirmed.

188

*UNITED STATES v. HOLMES et al.
Piracy.

The courts of the United States have jurisdiction, under the act of the 30th of April 1790, of murder or robbery committed on the high seas, although not committed on board a vessel, belonging to citizens of the United States, as, if she had no national character, but was held by pirates, or persons not lawfully sailing under the flag of any foreign nation.

In the same case, and under the same act, if the offence be committed on board of a foreign vessel, by a citizen of the United States, or on board a vessel of the United States, by a foreigner, or by a citizen or foreigner, or board of a piratical vessel, the offence is equally cognisable by the courts of the United States.

It makes no difference, in such a case, and under the same act, whether the offence was committed on board of a vessel, or in the sea, as, by throwing the deceased overboard and drowning him, or by shooting him, when in the sea, though he was not thrown overboard.

THE prisoners were indicted at the Circuit Court of Massachusetts, at the October term of said court 1818, for that the prisoners, being citizens of the United States, on the fourth day of July, then last past, with force and arms, upon the high seas, out of the jurisdiction of any particular state, in and on board a certain schooner or vessel, the name whereof being to the jurors unknown, in and upon a person known, and commonly called by the name of Reed, a mariner, in and on board said vessel, in the peace of God, and of the said United States, then and there being, piratically, &c., did make an assault; and that they, the said William Holmes, Thomas Warrington, otherwise called Warren Fawcett, and Edward Rosewain,

with a certain steel dagger, &c., which he, the said William Holmes, [*413 in his right hand then and there had and held, the said person commonly called Reed, in and upon the arms and breast of him, the said Reed, upon the high seas, and on board the vessel aforesaid, and out of the jurisdiction. of any particular state, piratically, &c., did strike and thrust, giving to the said person commonly called Reed, in and upon the arms and breast of him, the said Reed, upon the high seas, in and on board the vessel aforesaid, and out of the jurisdiction of any particular state, piratically, &c., in and upon the said arms and breast of him, the said Reed, several grievous wounds, and did then and there, in and on board the vessel aforesaid, upon the high seas, and out of the jurisdiction of any particular state, piratically, &c., him, the said person commonly called Reed, cast and throw, from out of said vessel, into the sea, and plunge, sink and drown him, in the sea aforesaid, of which said grievous wounds, casting, throwing, plunging, sinking and drowning, the said person commonly called Reed, upon the high seas aforesaid, out of the jurisdiction of any particular state, then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said William Holmes, &c., him, the said person commonly called Reed, then and there, upon the high seas as aforesaid, and out of the jurisdiction of any particular state, piratically, &c., did kill and murder, against the peace and dignity of the said United States, and against the form of the *statute of the said United States, in such case made and provided, &c.

[*414

Upon which indictment, the prisoners were found guilty of the offence charged therein. And, thereupon, the counsel for the prisoners moved the court for a new trial, for the misdirection of the court upon the points of law which had been raised at the trial. And upon arguing the said motion

United States v. Holmes.

for a new trial, the several questions occurred before the circuit court, which are stated in the opinion of this court, upon which the opinions of the judges of the circuit court were opposed.

From the evidence, it appeared, that a vessel, apparently Spanish (whose national character, however, was not distinctly proved by any documentary evidence, or by the testimony of any person conusant of its character), was captured by two privateers from Buenos Ayres, a prize-crew put on hoard and the prisoners were of that prize-crew. One of the prisoners was a citizen of the United States, and the other prisoners were foreigners. The crime was committed by the prisoners on the person whose death was charged in the indictment, by drowning him on the high seas, he being, at the time, a prize-master of the captured vessel, and thrown or driven overboard by the prisoners. There was no proof who were the owners of the privateers, nor where they resided, nor what were the ships' papers or documents, nor where, nor at what time, they were armed or equipped for war. The privateers had been at Buenos Ayres, and openly kept a rendezvous there, and shipped the crews there. The crews consisted chiefly of Englishmen, Frenchmen and Americans. *The commander of one of the privateers was, *415] by birth, a citizen of the United States, and had a family domiciled at Baltimore. The commander of the other was, by birth, an Englishman, but had long been domiciled at Baltimore. There was no proof, that either of them had ever lived at Buenos Ayres, or been naturalized there. All the witnesses agreed, that both the privateers were built at Baltimore. They had been at Buenos Ayres, before their sailing on this cruise, but a short time, one about six weeks, the other a few days only.

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 this court, to befinally decided.

February 14th. This case was argued by the Attorney-General, for the United States, and by Webster, for the prisoners, upon the same grounds which are stated in the argument of the preceding cases of United States v. Klintock (ante, p. 144), United States v. Smith (ante, p. 153), and United tates v. Furlong et al. (ante, p. 184).

March 15th. 1820. WASHINGTON, Justice, delivered the opinion of the court. This case comes before the court upon a division of opinion of the judges of the circuit court for the district of Massachusetts. The defendants are indicted for murder committed on the *high seas; and the *416] questions adjourned to this court are, 1. Whether the circuit court had jurisdiction of the offence charged in the indictment, unless the vessel on on board of which the offence was committed, was, at the time, owned by a citizen, or citizens of the United States, and was lawfully sailing under its flag? 2. Whether the court had jurisdiction of the offence charged in the indictment, if the vessel on board of which it was committed, at the time of the commission thereof, had no real national character, but was possessed and held by pirates, or by persons not lawfully sailing under the flag, or entitled to the protection of the government whatever? 3. Whether it made

United States v. Holmes.

any difference as to the point of jurisdiction, whether the prisoners, or any of them, were citizens of the United States, or that the offence was consummated, not on board of any vessel, but in the high seas? 4. Whether the burden of proof of the national character of the vessel on board of which the offence was committed, was on the United States, or, under the circumstances stated in the charge of the court, was on the prisoner?

The two first questions have been decided by this court at its present session. In Klintock's Case (ante, p. 144), it was laid down, that to exclude the jurisdiction of the ccurts of the United States, in cases of murder or robbery committed on the high seas, the vessel in which the offender is, or to which he belongs, must *be, at the time, in fact, as well as in right,

the property of a subject of a foreign state, and in virtue of such [*417 property, subject, at that time, to his control. But if the offence be committed in a vessel, not at the time belonging to subjects of a foreign state, but in possession of persons acknowledging obedience to no government or flag, and acting in defiance of all law, it is embraced by the act of the 30th of April, 1790. It follows, therefore, that murder or robbery committed on the high seas, may be an offence cognisable by the courts of the United States, although it was committed on board of a vessel, not belonging to citizens of the United States, as if she had no national character, but was possessed and held by pirates, or persons not lawfully sailing under the flag of any foreign nation.

The third question contains two propositions: 1. As to the national character of the offender, and of the person against whom it is committed; and 2d, as to the place where the offence is committed.

1. In respect to the first, the court is of opinion, and so it has been decided, during the present term, that it makes no difference whether the offender be a citizen of the United States or not. If it be committed on board of a foreign vessel, by a citizen of the United States, or on board of a vessel of the United States, by a foreigner, the offender is to be considered, pro hác vice, and in respect to this subject, as belonging to the nation, under whose flag he sails. If it be committed either by a citizen or a foreigner, on board of a piratical vessel, the offence is equally cognisable by the courts of the United States, under the above-mentioned law.

[*418

2. Upon this point, the court is of opinion, that it makes no difference, whether the offence was committed on board of a vessel, or in the sea, as by throwing the deceased overboard and drowning him, or by shooting him, when in the sea, though he was not thrown overboard. The words of the above act of congress are general, and speak of certain offences committed upon the high seas, without reference to any vessel whatsoever on which they should be committed; and no reason is perceived, why a more restricted meaning should be given to the expressions of the law, than they literally import. In the case of Furlong, for the murder of Sunley, decided during the present term of the court, it was certified, that murder committed from on board an American vessel, by a mariner sailing on board an American vessel, by a foreigner on a foreigner, in a foreign vessel, is within the act of the 30th of April 1790 (ante, p. 184). It follows from this, and the principles laid down in Klintock's Case, that the same offence committed by any person from on board a vessel having no national character, as by throwing a person overboard, and drowning him, is within.the same law.