Dissenting Opinion: Harlan, J. "This statute is a criminal and penal one, and is not to be enlarged beyond what the language clearly expresses as being intended. It is not the privilege of courts to construe such statutes according to the emergency of the occasion, or according to temporary questions of policy, but according to the principles considered to have been established by a line of judicial decisions. "It is contended that if the principles embodied in the exceptions are declared to be the law, there can be no law for the prevention of the fitting out of armed and hostile vessels to stir up insurrections and commit hostilities against nations with which we are at peace, and that such conclusion would make the parties engaged in any such expedition liable to prosecution as pirates. "To the first of these points it is considered that section 5286 is, as has been constantly held, intended to prevent any such expeditions, regardless of the character of the parties in whose behalf they were organized, the only distinction being that in that case it is necessary to bring a criminal suit and prove overt acts, while under this portion of this section the intent is the gravamen of the charge and the prosecution is against the vessel, regardless of the persons engaged in the fitting out or the ignorance or innocence of the owners. "This is not a case that can be or should be determined upon questions of public policy, and whether any parties subject themselves to prosecution for piracy or not should have no weight in its consideration. If they should be so subject they would have the benefit of the necessity of proving piratical acts rather than intentions. "It is certainly considered to be true that any such parties would be considered as pirates by Spain, and would be treated as such if found in any acts of hostility, regardless of any recognition this nation might give them by considering them as having any political character as a people. "Without attempting further argument, but regretting that the pressing duties of a very busy term of jury trials have prevented a fuller and more complete expression of my views, it is my conclusion that the line of judicial decisions demands VOL. CLXVI-6 Dissenting Opinion: Harlan, J. that a construction should be put upon the section in question which would hold that it was the intention of Congress in such enactment to prevent recognized political powers from having vessels prepared for their service in the United States, but that it was not the intention to extend such prohibition to vessels fitted out to be employed by individuals or private parties, however they might be designated, for piratical or other hostilities where no protection could be obtained by a commission from a recognized government. In such case they would be held liable under the section which provides for the fitting out of a military expedition, or if they were guilty of any piratical acts upon the high seas they would become liable under the laws for the punishment of such acts. It is con sidered that at the time of the amendment of 1818 this construction had been declared, and the language of the amendment was in no way intended to change such construction, but was only intended to apply to the new designation of political powers, the existence of which had been recognized as belligerents if not as independents, and who were entitled to the right of neutrals; that the libel herein does not state such a case as is contemplated by the statute, in that it does not allege that said vessel had been fitted out with intent that she be employed in the service of any foreign prince or state, or of any colony, district or people recognized as such by the political power of the United States, and unless it can be so amended should be dismissed, and it is so ordered. * * * * * "Since writing the foregoing, the libel herein has been amended by inserting in place of 'by certain insurgents or persons in the island of Cuba,' the words 'in the service of a certain people, to wit, certain people then engaged in armed resistance to the Government of the King of Spain in the island of Cuba,' but it is considered that the objection to the libel in sustaining the exceptions has not been overcome, but that although the language has been somewhat changed, the substance has not been amended in the material part, inasmuch as it appears clearly that the word 'people' is used in an individual and personal sense, and not as an organized and Syllabus. recognized political power in any way corresponding to a state, prince, colony or district, and can in no way change my conclusion heretofore expressed, and the libel must be dismissed." BARBER v. PITTSBURGH, FORT WAYNE AND CHICAGO RAILWAY COMPANY. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. A single verdict and judgment in ejectment, when not conclusive under the laws and in the courts of a State, is no bar to a second action of ejectment in the courts of the United States. When the construction of certain words in deeds or wills of real estate has become a settled rule of property in a State, that construction is to be followed by the courts of the United States in determining the title to land within the State, whether between the same or between other parties. A single decision of the highest court of a State upon the construction of the words of a particular devise is not conclusive evidence of the law of the State, in a case in a court of the United States, involving the construction of the same or like words, between other parties, or even between the same parties or their privies, unless presented under such circumstances as to be an adjudication of their rights. In Pennsylvania, under a will executed and taking effect before the passage of the statute of 1833, by which "all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation or otherwise in the will, that the testator intended to devise a less estate," and beginning with the statement that the testator was desirous of making a distribution of his property in the event of his decease, a devise of a parcel of land, without words of inheritance, gave an estate in fee, unless qualified by other provisions of the will. A devise over in the event of a married woman “dying without offspring by her husband" is equivalent to a devise in the event of her "dying without issue." In Pennsylvania, in a will executed and taking effect before the statute of 1855, enlarging estates tail into estates in fee, a devise of certain lots of land to A in fee, and "in the event of A dying unmarried, or, if married, dying without offspring by her husband, then these lots are to be sold, Statement of the Case. and the proceeds to be divided equally among the heirs of B," looked to an indefinite failure of issue of A, and gave A an estate tail. A power to sell land upon the expiration of an estate tail, and to divide the proceeds among persons then ascertainable, is not within the rule against perpetuities. In a will devising certain land to A, and, if A die without issue, "then to be sold and the proceeds divided equally among the heirs of B," and directing the residue of the testator's estate to be sold and the proceeds divided into sixteen shares, of which two are given to B and two others to" the heirs of B," both B and his children being alive at the time of the testator's death, the word "heirs" in the specific devise applies either to children or to more remote descendants of B, whichever may be his heirs if he be dead, or his heirs apparent if he be living, when the devise takes effect. Oral testimony to a testator's state of health at the time of publishing his will, or to his length of life afterwards, is incompetent to control the construction or effect of devises therein. THIS was a certificate from the Circuit Court of Appeals for the Third Circuit of questions on which it desired the instruction of this court, and, as originally made, was (omitting the words printed in brackets below) as follows: "This was an action of ejectment, and comes before this court on a writ of error to the United States Circuit Court for the Western District of Pennsylvania, which entered judgment for the defendants. "First. The parties to the action both claimed title to the land in controversy under the will of James S. Stevenson, deceased, dated March 11, 1831, which is in the words following, to wit: "I, James S. Stevenson, of the city of Pittsburgh, in the State of Pennsylvania, aged fifty years on the 12th day of January, 1831, reflecting on the certainty of death, and desirous of making a distribution of my property in the event of my decease, do hereby declare this writing to be my last will and testament, made this twelfth day of March in the year of our Lord one thousand eight hundred and thirty-one. "I give and bequeath to Amanda Stephens, daughter of Margaret Stephens, lots 67, 68, 69 and 70, in the city of Pittsburgh, in their full extent, bounded by Penn street, Wayne street, the Allegheny river and by lot 71. Said Amanda Stephens Statement of the Case. is now five years old (born April 7, 1826). Ste phens and --, his wife, the parents of Amanda's mother, live near Connellsville, in Fayette county, Pennsylvania. 666 "In the event of Amanda dying unmarried, or, if married, dying without offspring by her husband, then these lots are to be sold, and the proceeds to be divided equally among the heirs of John Barber, of Columbia, Pennsylvania. "I give and bequeath to John Barber, of Columbia, and to his heirs, the lots in the city of Pittsburgh, numbered 71 and 72, bounded by Penn street, by lot 70, by the Allegheny river and by lot 73. "I give and bequeath to Mary Livingston's children the lot 74 in the city of Pittsburgh. And to her unmarried sister, Eliza Stevenson, I give and bequeath the lot 73 in the city of Pittsburgh, and in the event of her death the lot to go to her sister's children. Mary Livingston and Eliza Stevenson are daughters of the late Colonel S. Stevenson, son of Robert Stevenson, of York county, Pennsylvania. "I give and bequeath to the sons of James Stevenson, formerly of York county, but who died in Lycoming county in 1810 or 1811, the brick and other buildings, with the ground on which they are erected, situated at the corner of Wood and Fifth streets, Pittsburgh. These sons are Stephen, Manning, Reuben, Samuel and I. Stevenson. "All the remainder of my property to be sold, and, after paying my debts, to be divided into sixteen shares, and to be disposed of as follows: To Amanda Stephens, one share; to Mary Livingston, one share; to Eliza Stevenson, one share; to Stephen Stevenson, within named, one share; to James Wright, of Columbia, or his heirs, two shares; to John Barber, of Columbia, two shares; to Ann Elliott, formerly Ann West, now wife of Rev. Mr. Elliott, of Washington county,. one share; to Jane E. Thecker, niece of the late Rev. Mr. Kerr, one sixteenth (or one share); to the heirs of John Barber, of Columbia, two shares; to the heirs of James Wright, of Columbia, two shares; to Charles Avery, J. M. Snowden and John Thaw, to be divided equally, two shares. "I hereby constitute and appoint the said Charles Avery, |