United States v. Smith. or safe mode of proceeding in a criminal, and especially, in a capital If it had been intended to adopt the definition *or definitions of this crime, so far as they were to be collected from the different *177] case. Hawkins (P. C. b. 1, c. 37) says, "A pirate, at the common law, is a person who commits any of those acts of piracy, robbery and depredation, upon the high seas, which, if committed upon land, would have amounted to felony there." From the terms of this definition (if it may be so called), it might be supposed, that by piracy, at the common law, something was meant peculiar to that law, and not piracy by the civil law, or the law of nations. But that was certainly not the meaning of the writer. For it is perfectly well settled, that piracy is no felony at common law, being out of its jurisdiction; and before the statute of 28 Henry VIII., c. 15, it was only punishable by the civil law. That statute, however, does not (as has been already stated) alter the nature of the offence in this respect; and therefore, a pardon of all felonies generally, does not extend to it. 2 East P. C. 796; 1 Hawk. c. 37, § 6, 8 10; 1 Hale 354; 2 Ibid. 18; 3 Inst. 112 And it was also determined in Rex v. Morphes (Salk. 85), that “no attainder for piracy wrought corruption of blood, for it was no offence at common law. 2 East. P. C. 796; Co. Litt. 391 a. The intention of Hawkins must have been, to use the phrase "at the common law," in its most comprehensive sense; in which sense, the law of nations itself is a part of the common law; since all offences against the law of nations are punishable by the criminal jurisprudence of England. Blackstone, in the commentaries (4 Com. 71, 73), evidently proceeds upon this notion. He says, "The crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society, a pirate being, according to Sir I'dward Coke, hostis humani generis." He goes on to remark, that every community hath a right to punish it, for it is a war against all mankind. He then gives the definition of piracy by Hawkins, as the definition of the common law; and then states the several statutes made in England on the subject of piracy, concluding thus: "These are the principal cases in which the statute law of England interposes to aid and enforce the law of nations, as a part of the common law, by indicting an adequate punishment for offences against that universal law committed by private persons." The state trials for phay, in the reign of William III., are entitled to great consideration, both from the eminent talents of the judges who constituted the tribunal, and the universal approbation of the legal principles asserted by them. It is also worthy of remark, that in none of these indictments was there any averment that the prisoners were British subjects; and most of them were for piracies committed on foreign subjects and vessels. They were all framed as indictments at common law, or for general piracy, without reference to any British statute. In Rex v. Dawson and others (8 Wm. III 1696, 5 State Trials 1, ed. 1742), the court was composed of Sir Charles Hedges, Judge of the High Court of Admiralty (as president) Lord Chief Justice Holt, Lord Chief Justice Treby, Lord Chief Baron Ward, Mr. Justice Rookby, Mr. Justice Turton, Mr. Justice Eyre, Mr. Baron Powis, and Doctors Lane, King and Cook (civilians), Sir Charles Hedges delivered the charge to the grand jury, and among other things, directed them as follows: Now, piracy is only a sea terin for robbery, piracy being a robbery committted within the jurisdiction of the admiralty. If any man be assaulted, within that jurisdiction, and his ship or goods violently taken away, without legal authority, this is robbery and piracy. If the mariners of a ship shall violently dispossess the master, and afterwards carry away the ship itself, or any of the goods, or tackle, apparel or furniture, with a felonious intention, in any place were the lord admiral hath, or pretends to have, jurisdiction, this is also robbery and piracy. The intention will, in these cases, appear, by considering the end for which the fact is committed, and the end will be known, if the evidence show you what hath been done. The king of England hath not only an empire or sovereignty over the British seas, for the punishment of piracy, but in concurrence with other princes and states, an undoubted jurisdiction and power in the most remote parts of the world. If any United States v. Smith. commentators on *this code, with all the uncertainty and difficulty attending a research for that purpose, it might as well *at once have [*179 been adopted as a standard by the constitution itself. The object, person, therefore, native or foreigner, Christian or infidel, Turk or pagan, with whose country we are in amity, trade or correspondence, shall be robbed or spoiled, in the narrow or other seas, whether the Mediterranean, Atlantic or Southern, or any branches thereof, either on this or the other side of the line, it is a piracy, within the limits of your inquiry, and cognisable by this court." It seems impossible to doubt, that Sir Charles Hedges here understood piracy to be punishable by all nations, as a crime against the law of nations, and that its true definition is the same in the civil and common law, as in the law of nations, viz., robbery upon the seas; and that, as such, it was punishable by the British courts, in virtue of their general concurrent jurisdiction on the seas. In Rex v. Dawson and others, there were several indictments. 1. The first was for piracy in robbing and plundering the ship Gunsway, belonging to the Great Mogul and his subjects, in the Indian seas. 2. The second, for piracy, in forcibly seizing and feloniously taking, stealing and carrying away, a merchant ship called the Charles II., belonging to certain of his majesty's subjects unknown, on the high seas, about three leagues from the Groyne, in Spain. 3. The third was for piracy on two Danish ships. 4. The fourth for piracy on a Moorish ship. Dawson pleaded guilty; and the other prisoners not guilty, and were upon trial convicted, and all sentenced to death accordingly. It appeared in evidence, that the prisoners were part of the crew of the Charles II., and rose upon her, near the Groyne, and afterwards ran away with her, and committed the piracies. The solicitor-general, in stating the case to the jury, said, "they (the prisoners) are arraigned for a very high crime, a robbery upon the seas." "These are crimes against the law of nations, and worse than robbery on land." Lord Chief Justice HOLT, in delivering the charge to the jury, said, “that there was a piracy committed on the ship Charles, is most apparent, by the evidence that hath been given; that is, a force was put upon the master, and some of the seamen on board her, who because they would not agree to go on a piratical expedition, had liberty to depart and be set ashore, &c. So that I must tell you, beyond all contradiction, the force put upon the captain, and taking away this ship, called the Charles II., is piracy." 2. On the trial of Kidd and others, for piracy, &c., in 13th of William III., 1713 (5 State Trials, ed. 1742), there were several indictments. 1. The first was against William Kidd for the murder of one W. Moore, on the high seas, near the coast of Malabar, in a vessel called the Adventure Galley, of which Kidd was commander. The second was against all the prisoners for piracy, in seizing and running away with a certain merchant ship called the Quedash Merchant, then being a ship of certain persons to the jurors unknown (not stated to be British subjects), upon the high seas, about ten leagues from Cutscheen, in the East Indies. In fact, the vessel and cargo appeared by the evidence to belong to Armenian merchants, and then on a voyage from Bengal to Surat. Lord Chief Baron WARD, in charging the jury on this indictment, said, "the crime charged upon them (the prisoners) is piracy, that is, seizing and taking this ship and the goods in it, piratically and feloniously. This ship belonged to people in amity with the king of England." "If this was a capture on the high seas, and these were the goods of persons in amity with the king, and had no French pass, then it is a plain piracy; and if you believe the witnesses, here is the taking of the goods and ship of persons in amity, and converting them to their own use. Such a taking as this would be felony; and being at sea, it will be piracy." The prisoners were convicted and sentenced to death. There were four other indictments, three for piracy on Moorish ships, and one for piracy on a Portuguese ship; and all the prisoners were convicted and sentenced. Mr. Justice TURTON, in charging the jury on one of these indictments, said, "pirates are called hostes humani generis, the enemies of all mankind." United States v. Smith. therefore, of refering *its definition to congress was, and could have been no other than, to enable that body, to select from sources it might think proper, and then to declare, and with reasonable precision to define, what act or acts should constitute this crime; and having done *so, to annex to it such punishment as might be thought proper. *181] Such a mode of proceeding would be consonant with the universal practice in this country, and with those feelings of humanity which are ever opposed to the putting in jeopardy the life of a fellow-being, unless for the contravention of a rule which has been previously prescribed, and in language so plain and explicit as not to be misunderstood by any one. Can this be the case, or can a crime be said to be defined, even to a common intent, when those who are desirous of information on the subject are referred to a code, without knowing with any certainty, where it is to be found, and from which even those to whom it may be accessible, can with difficulty decide, in many cases, whether a particular act be piracy or not? Although it cannot be denied, that some writers on the law of nations do declare what acts are deemed piratical, yet it is certain, that they do not all agree; and if they did, it would seem unreasonable, to impose upon that class of men, who are the most liable to commit offences of this description, the task of looking beyond the written law of their own country for a definition of them. If in criminal cases everything is sufficiently certain, which by reference may be rendered so, which was an argument used at bar, it is not perceived, why a reference to the laws of China, er to any other foreign code, would not have answered the purpose quite as well as the one which has been resorted to. It is not certain, that on examination, the crime would not be found to be more accurately defined in the code thus referred to, than *182] in any writer on the law *of nations; but the objection to the reference is in both cases the same; that it is the duty of congress to incorporate into their own statutes a definition in terms, and not to refer the citizens of the United States for rules of conduct, to the statutes or laws of any foreign country, with which it is not to be presumed that they are acquainted. Nor does it make any difference, in this case, that the law of nations forms part of the law of every civilized country. This may be the case, to a certain extent; but as to criminal cases, and as to the offence of piracy, in particular, the law of nations could not be supposed, of itself, to The case of Rex v. Green (4 Anne, 1704, 5 State Trials, 573, ed. 1742) was a libel or indictment in the court of admiralty, in Scotland, for piracy, manifestly treated both in the libel and the arguments, as a crime against the law of nations, and as such, also against the law of Scotland. In Erskine's Institutes of the Law of Scotland, in treating of the crime of piracy, the author says, "piracy is that particular kind of robbery which is committed on the seas." (Ersk. Inst. b. 4, tit. 4, § 65.) He had, in the preceding section (§ 64), declared, that, "robbery is truly a species of theft; for both are committed on the property of another, and with the same view of getting gain; but robbery is aggravated as by the violence with which it is attended." The definition of both these crimes seems not at all different from that of the common law. The foregoing collection of doctrines, extracted from writers on civil law, the law of nations, the maritime law, and the common law, in the most ample manner confirms the opinion of the court in the case in the text; and it is with great diffidence submitted to the learned reader, to aid his future researches in a path, which, fortunately for us, it has not been hitherto necessary to explore with minute accuracy. United States v. Smith form a rule of action; and therefore, a reference to it in this instance, must be regarded in the same light, as a reference to any other foreign code. But it is said, that murder and robbery have been declared to be punishable by the laws of the United States, without any definition of what act or acts shall constitute either of these offences. This may be ; but both murder and robbery, with arson, burglary, and some other crimes, are defined by writers on the common law, which is part of the law of every state in the Union, of which, for the most obvious reasons, no one is allowed to allege his ignorance, in excuse for any crime he may commit. Nor is there any hardship in this, for the great body of the community have it in their power to become acquainted with the criminal code under which they live; not so, when acts which constitute a crime are to be collected from a variety of writers, either in different languages, or under the disadvantage of translations, and from a code with whose provisions even professional *men are not [*183 always acquainted. By the same clause of the constitution, congress have power to punish offences against the law of nations, and yet it would hardly be deemed a fair and legitimate execution of this authority, to declare, that all offences against the law of nations, without defining any one of them, should be punished with death. Such mode of legislation is but badly calculated to furnish that precise and accurate information in criminal cases, which it is the duty, and ought to be the object, of every legislature to impart. Upon the whole, my opinion is, that there is not to be found in the act that definition of piracy which the constitution requires, and that, therefore, judgment on the special verdict ought to be rendered for the prisoner. 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 Virginia, 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 offence charged in the indictment in this case, and found by the jury to have been committed by the prisoner, amounts to the crime of piracy, as defined by the law of nations, so as to be punishable under the act of congress, entitled, "an act to protect the commerce of the United States and punish the crime of piracy." All which is ordered to be certified to the circuit court for the district of Virginia. (a) (a) See Appendix, Note IV., for the new act of congress on the subject of piracy, passed May 15th, 1820. 85 *UNITED STATES v. FURLONG, alias HOBSON. SAME V. SAME. SAME V. SAME. SAME V. SAME. SAME V. GRIFFEN and BRAILSFORD. SAME V. BOWERS and MATHEWS. SAME V. SAME. Piracy-Law of nations. The 8th section of the act of the 30th of April 1790, for the punishment of certain crimes against the United States, is not repealed by the act of the 3d March 1819, to protect the commerce of the United States, and punish the crime of piracy. In an indictme... for a piratical murder (under the act of the 30th of April 1790, § 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 offence committed against vessels of the United States. 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 road-stead, 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 the 30th April 1790, § 8, must be construed to mean out of the jurisdiction of any particular state of the Union.1 The act of the 3d of March 1819, § 5, furnishes a sufficient definition of piracy; and it is defined to be robbery on the seas. *185] *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 8th section of the act of the 30th of April 1790. On an indictment for piracy, the jury may find the national character of a vessel upon such evidence, as will satisfy their minds, 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 Courts 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 the 30th April 1790. (1 U. S. Stat. 113.) Verdict, guilty. The offence 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 1 United States v. Ross, 1 Gallis. 624. |