this code, with all the uncertainty and difficulty atU. States tending a research for that purpose, it might as well


lonious intention, in any place where 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 person, therefore, native or forcigner, Christian or Infidel, Turk or Pagan, with whose country we are in amity, trude 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 cognizable 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 seiz. ing and feloniously taking, stealing, and carrying away a merchant ship called the Charles 2d. 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 the 2d, and rose upon her near


at once have been adopted as a standard by the constitution itself. The object, therefore, of referring U. States

V. Smith.

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. &c. So that I must tell you beyond all contradiction, the force put upon the captain, and taking away this ship, called the Charles 2d, is piracy."

On the trial of Kidd and others for piracy, &c. in 13th of William III, 1713, (ö State Trials, edit. 1742.) there were several indictments. 1. The first was against William Kidd for the murder of one W. Moore, on the high scas, near the coast of Malabar, in a vessel called the Adventure Galley, of which Kidd was commander. 2. 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 Cutsbeen in the East Indies. In fact, the vessel aod cargo appeared by the evidence to belong to Armenian merchants, and then on a voyage from Bengaal 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 bigh 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


T. States

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


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, Uree 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 to all mankind.”

The case of Rex v. Green (4 Anne, 1701. 5 State Trials, 573. edit. 1742.) was a libel or indictment in the Court of Admiralty in Scotland for piracy, manifestly treated both in the libel and the arguinents as a crime against the law of nations, and as such, also against the law of Scotland.

In Erskine's Institutes of the litw of Scotland, in treating of the crime of piracy, the author says, “ piracy is that particuJar kind of robbery which is committed on the seas.” (Ersk. Inst. b. 4. tit. 4. s. 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 by the violence with which it is attended.” The definition of both these crimes seems not at all different from that of the coinmon lave.

The foregoing collection of doctrines, extracted from writers on the 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.


U, States

v. Smith.

so, to annex to it such punishment as might be thought proper. 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 every thing 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, or 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 in any writer on the law


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of nations; but the objection to the reference in both cases is 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 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 profes

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