The courts of the United States have jurisdiction under the Act
of 30 April, 1790, c. 36, 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 offense 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 on board of a piratical vessel, the
offense is equally cognizable by the courts of the United
States.
It makes no difference in such a case and under the same act
whether the offense 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,
Page 18 U. S. 413
otherwise called Warren Fawcett and Edward Rosewain, with a
certain steel dagger, &c., which he, the said William Holmes,
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 threw 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
Page 18 U. S. 414
statute of the said United States in such case made and
provided, &c. Upon which indictment the prisoners were found
guilty of the offense 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 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 board, 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.
Page 18 U. S. 415
The commander of one of the privateers was 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 be finally
decided.
MR. JUSTICE WASHINGTON 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
Page 18 U. S. 416
high seas, and the questions adjourned to this Court are
1. Whether the circuit court had jurisdiction of the offense
charged in the indictment, unless the vessel on board of which the
offense 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 offense 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 any
government whatever.
3. Whether it made any difference as to the point of
jurisdiction whether the prisoners or any of them were citizens of
the United States or that the offense 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 offense 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, 18 U. S. 144, it
was laid down that to exclude the jurisdiction of the courts 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
Page 18 U. S. 417
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 property, subject
at that time to his control. But if the offense 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 30 April, 1790. It follows, therefore, that
murder or robbery committed on the high seas may be an offense
cognizable 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 2. as to the place where the offense is
committed.
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 hac 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 offense is equally
cognizable by the courts of the United
Page 18 U. S. 418
States under the above mentioned law. 2. Upon this point, the
Court is of opinion that it makes no difference whether the offense
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 offenses
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,
18 U. S. 184, 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
30 April, 1790. It follows from this and the principles laid down
in
Klintock's Case that the same offense 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.
It is stated, in the charge of the court below that it did not
appear by any legal proof that the privateers had commissions from
Buenos Ayres, or any ship's papers or documents from that
government, or that they were ever recognized as ships of that
nation, or of its subjects; or who were the owners, where they
resided, or when or where the privateers were armed or equipped.
But it did appear
Page 18 U. S. 419
in proof that the captains and crew were chiefly Englishmen,
Frenchmen, and American citizens; that the captains were both
domiciled at Baltimore, where the family of one of them resided,
and that he was by birth an American citizen. It was also proved
that the privateers were Baltimore built.
Under these circumstances, the Court is of opinion that the
burden of proof of the national character of the vessel on board of
which the offense was committed was on the prisoners.
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 Massachusetts 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 said circuit court had jurisdiction of the offense
charged in the indictment, although the vessel on board of which
the offense was committed was not at the time owned by a citizen or
citizens of the United States and was not lawfully sailing under
its flag.
2. The said circuit court had jurisdiction of the offense
charged in the indictment if the vessel, on board of which it was
committed had, at the time of the commission thereof, 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 any government whatsoever.
3. That it made no difference, as to the point of jurisdiction,
whether the prisoners or any of them
Page 18 U. S. 420
were citizens of the United States or whether the deceased was a
citizen of the United States, or that the offense was committed not
on board any vessel, but on the high seas.
4. That the burden of proof of the national character of the
vessel on board of which the offense was committed was, under the
circumstances stated in the charge of the court, on the
prisoners.
