A commission issued by Aury, as "Brigadier of the Mexican
Republic" (a republic whose existence is unknown and
unacknowledged) or as "Generalissimo of the Floridas" (a province
in the possession of Spain) will not authorize armed vessels to
make captures at sea.
Quaere whether a person acting with good faith under
such a commission may be guilty of piracy?
However this may be in general, under the particular
circumstances of this case, showing that the seizure was made not
juri belli, but
animo furandi, the commission was
held not to exempt the prisoner from the charge of piracy.
The Act of 30 April, 1790, c. 36, s. ___, extends to all
persons, on board all vessels, which throw off their national
character by cruising piratically, and committing piracy on other
vessels.
This was an indictment in the Circuit Court of Virginia against
Ralph Klintock, a citizen of the United States, charging him with a
piracy committed on the high seas in April, 1818, on a vessel
called the
Norberg, belonging to persons to the jurors
unknown. He was found guilty generally.
The facts stated were that the prisoner is a citizen of the
United States; that the vessel in which he sailed as first
lieutenant was called the
Young
Page 18 U. S. 145
Spartan, was owned without the United States, and
cruised under a commission from Aury, styling himself Brigadier of
the Mexican Republic and Generalissimo of the Floridas, granted at
Fernandina, after the United States government took possession of
it. That he was convicted of a piracy, committed on the
Norberg, a Danish vessel in consequence of practicing the
following fraud upon her. The second officer of the privateer
brought on board some Spanish papers which he concealed in a locker
and then affected to have found them on board. The vessel was then
taken possession of, the whole original ship's company left on an
island on the coast of Cuba, and the second officer being put in
command, took the name of the original captain, sailed for
Savannah, and entered her there, personating the Danish captain and
crew. The Young Spartan followed, and put into a port in the
vicinity.
The counsel for the prisoner moved that the judgment be arrested
on the following grounds:
First, that Aury's commission exempts the prisoner from the
charge of piracy.
Second, that the fraud practiced on the Dane does not support
the charge of piracy as an act piratically done, and not in the
exercise of belligerent rights.
Third, that the prisoner is not punishable under the provisions
of the 8th section of the act of 1790.
Page 18 U. S. 146
Fourth, that the Act of 30 April, 1790, 8th section, "entitled
an act for the punishment of certain crimes against the United
States," does not extend to an American citizen entering on board
of a foreign vessel committing piracy upon a vessel exclusively
owned by foreigners.
Upon these errors in arrest of judgment, the judges of the
circuit court were divided in opinion, and directed the points,
with their division thereon, to be certified to this Court.
Page 18 U. S. 149
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The first and second points made by the counsel for the prisoner
may be considered together.
As judgment can be arrested only for errors apparent on the
record, we should feel no difficulty in certifying our opinion of
the insufficiency of these on that ground were we not persuaded
that from some inattention, the questions which arise properly on a
motion for a new trial have been stated by the clerk as a motion in
arrest of judgment, and that the same points, if undecided now,
will recur when judgment is about to be pronounced. In a criminal
case especially, we think it proper to decide the question on its
real as well as technical merits.
So far as this Court can take any cognizance of that fact, Aury
can have no power, either as Brigadier of the Mexican Republic, a
republic of whose existence we know nothing, or as Generalissimo of
the Floridas, a province in the possession of Spain, to issue
commissions to authorize private or public vessels to make captures
at sea. Whether a person acting with good faith under such
commission may or may not be guilty of piracy, we are all of
opinion
Page 18 U. S. 150
that the commission can be no justification of the fact stated
in this case. The whole transaction taken together, demonstrates
that the
Norberg was not captured
jure belli, but
seized and carried into Savannah
animo furandi. It was not
a belligerent capture, but a robbery on the high seas. And although
the fraud practiced on the Dane may not of itself constitute
piracy, yet it is an ingredient in the transaction which has no
tendency to mitigate the character of the offense.
The third and fourth errors assigned in arrest of judgment may
also be considered together. The questions they suggest arise
properly on the indictment, and require a reconsideration of the
opinion given by the Court in
Palmer's Case,
3 Wheat. 610.
The question propounded to the Court in that case was in these
words:
"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 subject or citizen of the United States, be a
robbery or piracy within the true intent and meaning of the said
8th 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?"
The same question was again propounded, so varied only as to
comprehend the offense if committed
Page 18 U. S. 151
by American citizens in a vessel belonging to foreigners.
The court, in concluding its exposition of the act, thus sums up
its opinion:
"The court is 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
a piracy within the true intent and meaning of the act for the
punishment of certain crimes against the United States."
The certificate of the court conforms entirely to this
opinion.
This opinion and certificate apply exclusively to a robbery or
murder committed by a person on board of any ship or vessel
belonging exclusively to subjects of a foreign state. It is, we
think, the obvious import of these words that to bring the person
committing the murder or robbery within them, the vessel on board
which he is or to which he belongs must be at the time, in point of
fact as well as right, the property of the subjects of a foreign
state, who must have at the time, in virtue of this property, the
control of the vessel. She must at the time be sailing under the
flag of a foreign state, whose authority is acknowledged. This is
the case which was presented to the court, and this is the case
which was decided. We are satisfied that it was properly
decided.
But the reasoning which conducted the court to this conclusion
is founded on sections of the act the general words of which ought
to be restricted to offenses committed by persons who, at the time
of
Page 18 U. S. 152
committing them, were within the ordinary jurisdiction of the
United States, and the language employed may well be understood to
indicate an opinion that the whole act must be limited in its
operation to offenses committed by or upon the citizens of the
United States. Upon the most deliberate reconsideration of that
subject, the Court is satisfied that general piracy, or murder, or
robbery committed in the places described in the 8th section by
persons on board of a vessel not at the time belonging to the
subjects of any foreign power, but in possession of a crew acting
in defiance of all law, and acknowledging obedience to no
government whatever, is within the true meaning of this act and is
punishable in the courts of the United States. Persons of this
description are proper objects for the penal code of all nations,
and we think that the general words of the act of Congress applying
to all persons whatsoever, though they ought not to be so construed
as to extend to persons under the acknowledged authority of a
foreign state, ought to be so construed as to comprehend those who
acknowledge the authority of no state. Those general terms ought
not to be applied to offenses committed against the particular
sovereignty of a foreign power, but we think they ought to be
applied to offenses committed against all nations, including the
United States, by persons who by common consent are equally
amenable to the laws of all nations.
CERTIFICATE. This cause came on to be heard on the transcript of
the record from the Circuit Court
Page 18 U. S. 153
for the District of Georgia and was argued by counsel. On
consideration whereof, this Court is of opinion:
1st. That Aury's commission does not exempt the prisoner from
the charge of piracy.
2d. That although the fraud practiced on the Dane may not in
itself support the charge of piracy, the whole transaction, as
stated in the indictment and in the facts inserted in the record,
does amount to piracy.
3d. That the prisoner is punishable under the provisions of the
8th section of the act of 1790.
4th. That the Act of 30 April, 1790, does extend to all persons
on board all vessels which throw off their national character by
cruising piratically and committing piracy on other vessels.
