
    The United States v. Palmer et al.
    
    A robbcry committed on the high seas, although such robbery if com., milled on land would not by the lav s of the United Surtes bo punishable with death, is piracy under the 8th section of the act of 1700» •ch. 36, (ix) for the punishment of certain crimes against the United Slates; and the circuit court» have jurisdiction thereof.
    The crime of robbery* as mentiem d in 1 lie net, ia the crime of robbery as recognized and defined at common 1 aw*
    Tho crime of robbery committed by a pcrsonrvvho is not a citizen of the United States, on tho high seas, on board a ship belonging ear~ ehtsively to subjects of a foreign stale, is not piracy under tho ac* and is not punishable in the courts of the United State?.
    When a civil war rages in a foreign nation, one part of which separates itself from the-old cstaVisl.ed covcrrccnt, rnd creels itself into a distinct government, the courts of the Union must view such newly constituted government, as H is viewed by the legislative and* executive departments of the government of the United States.
    If that government remains neutral, but recognizes the existence of» civil war, the court» of the Union cannot consider as criminal thoso acts of hostility which war authorizes, and which the new govern?* merit may direct against its enemy.
    The same testimony which would be sufficient to prove that a vessel or person is in'the service of an acknowledged state, is admissible to prove-that they are in tho service of such newly erected government.. Itsseal cannot btj allowed to prove itself, hut may he proved by such testimony as the nature of the case admits ; and the fact that a vessel or person is in the service of such gov Tn’ncnt. may be established otherwise, should it be impracticable to provc-llju seal.
    This case was certified from the circuit court for the Massachusetts districts
    
      At the circuit court of the United States, for the first circuit, begun and holden at Boston, within and for the Massachusetts district, on Wednesday, the fifteenth day of October, in the year of our lord one thousand eight hundred and seventeen!
    Before the honourable Joseph Story, associate jus •’ tice, and John davis, district judge.
    The jurors of the 'United States of America within and for the district aforesaid, upon their oaths, do present, that John PalmeV and Thomas Wilson, both late of Brston, in the district aforesaid, mariners, and Barney Colloglran, late of Newburyport, in the aforesaid district, mariner, . with force and arms, upon the high seas, 'out of the jurisdiction of any particular state, on the fourth day of inly now- last past, did piratically and/ feloniously set upon, board break, and entera certain ship called the Industria' RalTaelli, then and there being a ship of certain persons (to the jurors aforesaid unknown,) and then.and there,, piratically and feloniously, did make an assault in and upon certain persons, being mariners» •subjects of the king of Spain, whose names to the jurors aforesaid are unknown, in the same ship, in the peace of God, and of the said United States of America, than and there being, and then there piratically and feloniously did put the aforesaid persons, mariners of the same ship, in the ship aforesaid then be ing, in corporal fear and danger of their lives, then and there, in the ship aforesaid, upon the high seas aforesaid, and out of the jurisdiction of any particular state, as aforesaid, and piratically and feloniously did, then and there, steal, take and carry.away five hundred boxes of sugar, of the value of twenty thou-sand dollars of lawful muney of the said United States; sixty pipes cf rum, of the value of six thousand dollars? two hundred demijohns of honey, of t.he value of one. thousand dollars; one thousand hides, of the value of three thousand dollars; ten hogsheads of coffee, of. the value of two thousand, dollars; hnd four bags of silver and gold, of the value of sixty thousand dollars, of the like lawful money of the said United States'of America, the goods and chattels of certain persons, (to the jurors aforesaid unknown,) then and there, up_ on the high seas aforesaid, and out of the jurisdiction of any particular state, being found in the aforesaid ship, in custody and possession of the said mariners in the said, ship, from the said mariners ot the same >ship, and from their custody and possession, •then and there, upon the high seas aforesaid, out of the jurisdiction of any particular state, as aforesaid; against the peace an 1 digiity of the said United States, and the form pf the statutes of the United States, in such ease made and provided. And the jurors afore_ said, upon their oath, aforesaid, do farther present, that the aforesaid district of Massachusetts is the district where ti e offenders ; forcsr.id were first apprehended for the said offence.
    To which indictment the prisoners pleaded not guilty, and upon the trial the following questions occurred, upon which the opinions of the said judges of the circuit court we e opposed.
    ;lst. Whether a robbery committed upon the high seas, although such robbery, if committed upon land, Would not, by the laws of the United States, be punIshable with death, is piracy under the eighth section of the act of congress, passed the thirtieth of April, A. D-1790; and whether the circuit court. of the United States hath authority to take cognizance of, try, and punish such offence?
    2d. Whether the crime of -robbery-^ mentioned in the said eighth section of the act of congress aforesaid, is the crime of robbery, as recognized and defined at common law, or is dispunishable until it is defined and expressly punished by some net of congress,’other than the act of congress above mentioned?
    3.1. Whether the crime of robbery, committed by persóns who are not citizens' of the United States, on the high seas, on board of any ship or Vessel, belonging ex, cl.usivelv 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 citizen or citizens of the United Stated; be a robbery or piracy, within the true intent and meaning of the said eighth 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?.
    4t'h. Whether the crime of robbery committed on the high seas, by citizens of the united States, on hoard of any ship or vessel not belonging to the United Stales, or to Inny "citizens of the United States, in whole or in part, but owned by, and exclusively, belonging to., the subjects of a foreign state or sovereignty, or committed, on the high seas, on the person of any subject of any foreign -state or sovereignty, who is ndf, at the time, on board of any ship or vessel, belonging in whole or part to the United States, or to any citizen thereof, be a robbery or piracy within the said 'eighth section of the acts of congress aforesaid, and of which the circuit court of the United States hath cognizance to hear, try, and deter, mine, and punish the same ?
    5th. W'hether a.ny revolted colony, district, or people, which have thrown off their allegiance to their mother country, but hare never-been acknowledged by the United States, as ;a sovereign or independent nation or power,, have authority to issue commissfons to make captures on the high seas of the persons, property and vessels of the subjects of. the mother ^country, who retain their allegiance; and whether the captures made under such commissions are, as to the United States, to be deemed lawful; and whether the forcible- seizure, with violence, and by putting in fear of the persons on board of Ihe vessels, the property of the subjects of such mother country, who retain their allegiance, -on the high seas, in virtue of such commissions, is not to be deemed a roobery or piracy within the said e:ghth section of the act of congress aforesaid ? ■
    6th. Whether an act, which would be. deemed a. robbery on the high seas,, if done without a lawful commission, is protected from being considered as a robbery on the high seas, when-the same act is done under a commission, or the colour of a commission from any foreign colony,, district,, or people, which have revolted from their native allegiance, and have declared themselves independent and sovereign, and have assumed to exercise the powers and authorities of. an independent and sovereign government, but have never been acknowledged', or recognized, as an independent or sovereign government, or nation, by the United States, or by any other foreign state, prince, or sovereignty ?
    7th. Whether the existence of a commission to make captures, where it is set up as a defence to an indictment for piracy, must be proved by the production of the original commission, or of a certified cópy thereof from the proper department of the foreign state or sovereignty by whom it is granted ; or if not, whether the impossibility of producing either Ihe original or such certified copy must not be proved before any inferior and secondary evidence of the existence of such commission is to be allowed,, on the trial of such indictment before any court of the United States 1
    
    8th. Whether the seal, purporting tobe, the seal of a fpreign state or sovereignty, and' annexed to any such-commission or a ce; tilled copy thereof, is to he admitted’ in a court of the United States as'proving itself, with - out any other proof of its genuineness, so as to establish the legal existence of such commissionTrom such foreign state or sovereignty 1
    
    9th. Whether a seal, annexed to any such commission, purporting to he the public seal used by the persons exercising the poweis- of government in any foreign colony, district, or people, which, have re-, volted from their native allegiance, and have declared themselves independent and sovereign, and actually exercise the . powers of an independent government or nation, but.bare never been acknowledged as such independent government or nation- by the Uni-tej States, is admissible in a court of the United States , as pr'oof of the legal existence of such-commission, with or without farther proof of the genuineness of such seal ?
    10th. Whether a.iy colony, district, or people, who have revolted from IhAr native allegiance, and have assumed upon themselves the exercise of independent and sovereign power, .can be deemed, in any oour.t of the United States, an independent or sovereign nation or government, until they have been acknowledged as such by ’ the government of the United States; and whether sitch acknowledgement can be proved in a court of the United States, otherwise than by some act, or statute, or resolution, of the congress of the United States, or by some public proclamation, or other public act of the executive authority of the United States, directly containing or announcing such acknowledgement,' or by publicly receiving and acknowledging an ambassador, or other public minister-from such colony,- district,- or' people ; and whether such acknowledgement can be proved by mere inference from the, private acts or private instructions of the exe. cutive of the United States, when no public acknowledgement has ever been made ; and whether the courts of the United Statesare bound judicially to take notice of the existing relations of the United, States, as to foreign ..states and sovereignties, their colonies, and dependencies ?
    ll.th.- Whether in case of a civil war between- a mother country and its colony, the subjects of'the different parties arc to be deemed, in respect to neutral nations as enemies to each other, entitled to. the rights of war ; and that captures made of each other’s . . ' ships and other property on the high seas are to be considered, in respect to neutral nations as rightful, so that courts of law of neutral nations are not authorized to deem such acts as pitacy ^
    And the said judges, being so opposed in opinion upo.n the questions aforesaid, the same were then and there,.at the repuest 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 the supreme court, at their next session to be held thereafter, to be finally decided by said supreme court; and the court being farther of opinion, -that farther proceedings could not be had in said cause without prejudice to the merits of the same cause, did order, that the injury 'impannelled as aforesaid to try said cause, be discharged from giving any verdict therein.
    
      March 13th.
    
    Mr. Blake for the United States,
    argued 1. That a robbery committed on the high seas, is piracy, under the 8th section of the act of 1790, ch. 36. “for the punishment of certain crimes against the United States,” although no law of the United States be subsisting for the punishment of the same' offence if committed on land ; and that such piracy is cognizable in the circuit court. The words of the statute are, That if any person or persons shall commit, upon the high seas,” &c. “murder or robbery, or any other offence» which if committed within the body of a county, would by the law of the United States, be punishable;with deathSec. “every such offender shall'be deemed, taken, and adjudged to be a pirate and felon, and being thereof convicts !, shall suffer death,” &c» The relative pronoun "which” does not relate buck to spec¡gecj offences 0f “murder or robbery” but refers only to its immediate antecedent, “any other offence.” It is this la.st class of ciimes only that must be punishable, by the laws of the United States, with death, if committed within the body of a county, in order to constitute them piracies, when committed on the high seas-. It'is a mistaken principle commonly applied-to penal statutes, that they are to be construed strictly. Sir William Jones has lai-1 down the true rule, that' criminal laws are to be construed liberally as to the offence, and strictly as to the offender. A strong illustration of the good sense of this rule, is to be found in the construction which has been given in 'England to the Slabbing Act.
      
       A contrary construction of the statute now under consideratiori, would render it wholly inoperative, until there shall be a law of the United States, for the punish•ment of robbery committed in .the body of a county ; which will never happen, ns the United States have no constitutional authority to punish a robbery committed within (he body of a county. Forts, arsenals, dockyards, &c. “under the sole and exclusive jurisdiction of the United States,” cannot be said to be within the -body of a county. It may- be admitted that there is some degree of loosness in the phraseo» logy of this section; which was evidently copied from the British statute of the 39 Geo. III. ch. 37, relative to the same subject, Without regarding the dif- . ference between the constitutions of the two countries. On the construction oí the British statute, it would be perfectly immaterial whether the pronoun “which” was carried back to the words “murder and robbery,” or whether it was confined to its immedi* ate antecedent; because, in England, murder and robbery arc punishable with death,' when'committed *n the body of a county, under the same laws which constitute them piracies- when committed on the high seas. But such a construction of our statute would render it wholly inoperative as to the great of-fences- of murder and robbery, which are not, and cannot be made punishable under the laws of the United States, when committed within the body of a county. Nor can it be objected, that by the construction now contended for, the Words “any other offence” would be equally inoperative; because there are various of-fences which would still be reached by the statute, such ' as treason, &c.. for the punishment of which Congress may provide, though committed w'thin the body of a county.- It follows as a corollary, that the circuit court.has cognizance of these offences ; for, by the judiciary act of 17S9, ch. 20. s 11. it has cognizance of all crimes- and offences cognizable under the authority of the United, States.’’'' — 2. The crime of robbery mentioned in the 8th section of the act of 1780, is the crime of robbery as understood at comino n law, A piracy or felony on the high seas is sufficiently defined, by terming it a robbery committed on the high sea»* The import of the term “robbery,” must be sought in. Uie common law. in the same manner as the im-i P°rt of the terms murder, manslaughter, rescous, benefit of clergy, and many others that are used in phe criminal code of the United States. — 3. If the robbery in question amount to piracy, by the Jaw of nations, the words “any person, or persons,” in the 8th section, will embrace the subjects of all nations^. who may commit that offence on the high seas, whether on board a foreign vessel, or a vessel belonging to citizen'’ of the United Statés. A felony, which is made a pirácy by municipal statutes, and was not Such by the law of nations,- cannot be' tried by the courts of the United States, if committed by a foreigner.on board a foreign vessel, on tne high seas; because the jurisdiction of the United States, beyond their own territorial limits', only extends to the punishment of crimes which are piracy by the law of nations. But it is the right and . the duty of the Unitetd States, as s. member of the community of nations, to punish offences committed on the high seas against the law of nations. By-this statute, con.? gress have exercised this power, which is also conferred on. them by the constitution. The offence of piracy, which is imperfectly defined by the law of nations, is declared to be murder or robbery-committed • on the high seas, or in .any river, &c.. out of the jurisdiction of any particular state ; and is made punishable with death. Congress cannot be presumed to have neglected so important a duty as. that of defin" ing and punishing the offepce of general. piracy. Without this statute, there can be found no definition and punishment of it; because the law of nations merely creates the offence, and the common law and statute 28 Henry VIII. ch. 15. may perhaps not be considered as in force in the United States. — 4. The crime of robbery committed by a citizen of the United States on the high seas, on board a foreign vessel, or on the person of a foreigner, must be considered as a piracy, under the 8th section of the act; because the jurisdiction of a nation extends to its citizens, wheresoever they may be, except within the territory of a' foreign sovereign.
      
       The jurisdiction of a nation over its public ships is exclusive every where; but it is not exclusive over merchant vessels belonging to its subjects. It is there concurrent with the personal jurisdiction of other nations over their citizens. Consequently the personal jurisdiction of the United State8, over their citizens extends to offences committed by them on board of foreign merchant vessel on the high seas. — 5..The general principle applied by the writers on the law of nations to the case of a civil war, considers the war, (as between the conflicting parties,) as just on both sides, and that each is to treat the other as a public enemy, according to the es'ablished usages o^ war. So, also, it is the duty of other nations to re. main neutral, and not to interfere with the exércise of complete belligerent rights by both parties within the erritory which is the scene of théir hostilities. But this does not imply a right on their part to push their wars on to the cean,. and to annoy the rest of the world on this common highway of nations. The genera^ty* *he expressions ired by Vattai on this subject may, indeed, seem to import such a right. But it should be remembered that, with all his merit, he is very deficient in precision, and on this question pe culiarly unsatisfactory. The maritime rights of a belligerent power must be perfect, or they cannot exist at all. They must, 'therefore, include the right,of visitation and search, and of detaining for adjudication; and of punishing a resistance to the exercise of these rights by the appropriate penalty of confiscation' So that neutral nations may come to be affected in their most valuable interests by a mere domestic quarrel, which never ought to have been extended beyond the territory of the people where it originated. This renders it indispensable to inquire how far nputral nations are bound to submit to the exercise of these high prerogatives of sovereignty in a civil' war, under colour of a commission from one of the belligerent parties, Whose independence has not been acknowledged by any power. ' The right of an insurgent people to be treated by the parent state, against which it revolts, with all the humanity and moderation which are required in any other war, and the duty of neutral nations to abstain from interfering in.the contest, are not denied. But the right of the new people to thrust themselves into the family of nations, and to make the ocean the theatre of their predatory, hostilities, without the consent of other nations, is denied. Such a right can only he founded upon a perfect title to sovereignty, which cannot exist in a case where.the very object*of the war ¡3 to decide whether the claim of the. former sovereign, or. of the revolted people shall prevail. This title cannot be taken notice of by the courts of justice until it has been recognized by the government of the country under whose authority they sit. — 6. If, then, a revolted colony or people, whose independence has not been recognized by the government of the United States, have no authority to issue a commission to make captures on the high seas, which can be considered as valid in the courts of the United States, a capture under such a commission is, in no respect, distinguishable from a capture without any commission. A privateer, cruizing under two commissions from different sovereigns is a pirate. In the case of the famous pirate Kydd,
      
       the indictment was for general piracy. He had two commissions, one-against the French, the other against certain pirates, which he produced in his justification. But Lord Chief Baron Ward sai 1, “ If he had aclel pursuant to his commission, he ought to have condemnea ship and goods, if they were French'; but by his not condemning, he seems to show his aim, mind, and inu ttntion, and that he did not act in that case by virtue of his commission, but quite contrary to it. Whilst men pursue their commissions, they must be justified } but when they do things not authorized, or never intended by them, it is as if they had n\> commission.5* This principle, that here the criminal intention is apparent, the quality of the act will not be changed by its having been committed under colour of legal authority, is illustrated by all the analogies of criminal law. — 7. The established rules of evidence ought not to be dispensed with in the proof' of an authority to capture, where that authority is set up as a defence •to an indictment for piracy. All civilized nations have departments and offices, in which the commissions issued to their cruizers are registered ; the' original is borne about with him by the cruizer as his authority to search, to detain, and to capture ; a copy of it may always be readily obtained by application at the proper office. The impossibility of producing the original, or an examined copy of such a commission, is, therefore, an inadmissible supposition. The rule 6f evidence which requires that it should be produced is inflexible, and is founded upon the reasonable suspicion, excited by a resort to inferior testimony, that there rnust be some fatdl defect in the original documents. — 8. There can be no doubt that the seal of a recognized foreign state ' or sovereignty,-.is to be admitted as proving itself, without other proof of its genuineness. But the seal of a new people, or state, is not sufficiently notorious to prove itself, and to give credit to it would be to recognize the sovereign from whom it emanates, which courts of justice are not Competent to do. 9. The ninth question certified’ fj-om the court below has been already answered. 10- The first branch of the tenth question has been before answered by this court in the cases already cited. The second branch of this question.pre-supposes that no distinct acknowledgment of the new state has been made by the United States, since it excludes' from consideration any public act of recognition by the legislative and executive departments, and confines itself to the mere private acts and instructions of the executive. On a subject of such importance as a change in the foreign relations of the country, nothing but the most explicit, public, and notorious act's of the government should be noticed by courts of justice. Nothing should be left' to inference and conjecture ; because, such a course might lead to a usurpation by the courts of the high prerogative of making war and peace, and the whole nation would become responsible to other nations for the efror of judgment in a department with which it.had not entrusted the care of its foreign affairs. In the infinite variety and complication of these affairs, the language and conduct of the executive may., bei misunderstood ; and, therefore, nothing short of an act of the whole legislature, a treaty, a proclamation of the president, or the public reception of an ambassador from the new stale, ought to be considered as a recognition of its, independence. 11. The eleventh question is involved, in the discussion of the pro’eeedin'-
    miiued'on't'he robbery, committed on land»wouWnot ^e*U. *s.*be wHh'^eeth, is eh. 36., s. 8.; end the circuit íourt-2 have £^tI0U '
    No counsel appeared to argue the cause for the pr«oners.
    
      March 14th.
    
      
      
         Life of Sir W. Jones, p. 268.
    
    
      
      
         Foster’s Crown Law, 297.
    
    
      
      
         4 Bl. Com. 71.
    
    
      
       2 Rutherfords's Inst. 180. Vattel, L. 2 ch. 6.
    
    
      
      
         Vattel, L. 3 ch. 18. s. 296.
    
    
      
      
         Rose v. Himely, 4 Cranch, 292. Gelston v. Hoyt, ante p. 324.
    
    
      
      
         2 Sir L. Jenkins' Life, 714. Ord. de la Mar. L 3. t. 9. art. 3. Martens on Privateers, 44.
      
    
    
      
      
         5 State Trials, 314.
    
    
      
       2 East's Crown Law, 660. Forster, 135, 154. 312.
    
    
      
       Rose v. Himely, 4 Cranch, 292. Gelston v. Hoyt, ante, p. 324.
    
   Mr. Chief Justice Marshai.l

delivered the opinion of the court. In. this case, a series of questions has been proposed by the circuit court of the United States, for the district of Massachusetts, on which the judge® of that court were divided in opinion. The questions occurred on the trial of John Palmer, Thomas Wilson, and Barney Calloghan, who were indicted for piracy committed on the high seas.

The first four questions, relate to the construction of the 8th section of the “act for the punishment of certain crimes against t*he United States!.”

The remaining seven questions^ respect the rights of a colony or other portion of an established empire, which has proclaimed itself an independent nation, and is asserting and maintaining its claim to independence by urns.

The 8th ssecjion of the act on which these prison-were- indicted is in these words: “And be it Enacted, that" if any person or nersons shall com-, ' . mit, upon the high seas, or in any river, haven, bason, or bay, out of the jurisdiction of any particular state, murder or robberv, or any other .offence, within the body of a county would, by the law's of the United States, be punisha. ' , ... • • r ble with death; or if any captain or manner >of any ship or other vessel, shall piratically and feloniously suit away with. such ship or vessel, or any goods or merchandize, to the value of fifty dollars or yield up such ship or vessel voluntarily to any pirate ; or if any seaman shall lay violent hands upon his com*, mander, thereby to hinder and prevent his fighting-in defence of his ship, or goods committed to his trust? or shall make a revolt in the ship; every such offend er shall be deemed, taken, and adjudged to he a pirate and felon, and being thereof convicted, shall suffer death; and the trial of, crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may first be brought.”

Robbery committed on land, not being punishable by the laws of the United States with death, it is doubted whether it is made piracy by this act, when committed On the high seas. The argument is understood to he, that congress did not intend to make that'a capital offe ice on the high seas, which is not a capital offence on lamí. That only such murder, and. such robbery, and such other offence as, if committed within the body of a county, would, by the laws of the United States, be punishable .with death, is made piracy. That the word “other” is without use or meaning, if this conctruction be rejected. That it so connects murder and robbery with the following member of the sentence, as to limit the words murder and robbery to that description of those offences which might be made punishable with death, if committed on land. That in consequence of this word, the relative “which” has fot its antecedent the whole preceding part of the sentence, and not the words “other offences.” That section consists of three distinct classes of piracy. The first of offences which if committed within the body of a county, wpuld be punishable with death. The se* c'oncl and third, of particular offences which are enu- , , merated.

This argument is entitled to. great respect on every account; and to. the more, because, in. expounding a law which inflicts capital punishment, no over -rigid construction ought to be admitted. But the court .cannot assent tó its correctness.

The legislature having specified murder and robbery particularly, are understood to indicate clearly the intention that those offences shall amount to piracy; there could be no other motive-for. specifying them. The subsequent, words dó not appear to be employed for the purpose of limiting piratical murder and robbery, to that description of those offences which- is punishable with death, if committed on land, but for-the purpose of adding other offences, should there be any, which were not particularly .recited, and «which were rendered capital by the laws of the Uni-'fed States, if committed within the body of a county. Had the intention of congress been to render the crime of piracy dependent on the punishment affixed to the same offence, if committed on land, this intention must have been expressed in very different terms ■from those which .have been selected.' Instead of enumerating murder and rribbery as crimes which should constitute piracy, and then-proceeding to use a general term, comprehending other 'offences, the language of the legislature would have been, that “my offence” committed on the high seas, which, if committed in the body of a county, would be punisha. ble with death, should amount to piracy.

The particular crimes enumerated were undoubtedly first in the mind of congress. No other motive for the enumeration can be assigned. Yet on the construction contended for, robbery on the high seas would escape unpunished. It is not pretended that the words of the legislature ought to be strained beyond their natural meaning, ror the purpose of embracing a crime which would otherwise escape with impunity; Wit when the words of a statute, in their most obvious sense, comprehehd an offence, which offence is apparently -placed by the legislature in the highest class of crimes, it furnishes an additional motive far rejecting a construction, narrowing the plain meaning of the words, that such construction would leave the crime entirely «unpunished.

The correctness-of this exposition of the 8th section is confirmed by those which follow.

The Qth punishes those citizens of the United States who commit the offences described in the 8th, under colour of a commission or authority derived from a foreign state. Here robbery is again particularly -specified.

The 10th section extends the punishment of death to accessories before the fact. They are described to be those who aid, assist, advise, &c. &c any person to “commit any .murder, robbery,, or < ther piracy aforesaid.” If the . word “aforesaid” be conne'cted with “murder” and . “robbery,” as well as with “other piracy,” yet it seems difficult, to resist .the conviction that the legislature considered paurder and robbery as acts of piracy..

The robbery, as mentioned in thcactofi790 crime of robbe ry as recogniz ed and defined law.

mbícry^'com mitted by a person who is hota citizen en the higlí o^a' ahip^be riTely^to^Mb jects of a reign state, Í3 not piracy un U court® *of

The 11th section punishes acccessories after the fact. They are those who, “after any murder, felony, robbery., or other piracy whatsoever, aforesaid,?’ shall have been committed, shall furnish aid to those by whom the crime has been perpetrated. Can it be doubted, that the. legislature considered murder, felony, and robbery, committed to the high seas, as piracies ?

If it be answered, that although this opinion was "tertained, yet, if the legislature was mistaken, those whose duty it is to construe the law, must not yield to' that mistake ; we say, that when the legislature manifests this clear understanding of its own intention, which consists with its words, courts are bound by •.

of raean¡ng 0f t},e term robbery, as used in the tatute, we think no doubt can be entertained. It must a be understood in the sense in which it is recognized and defined at common law.

The question, whether this act extends farther than to Americün citizens, or to persons on board Ameri- . ’ . . can vessels, or to • offences committed against cit-zens of the United States, is not without its difficulties. The constitution having conferred on congress Power defining and punishing piracy, there be no doubt of the right of the legislature . . . ' , to enact laws punishing pirates, although they may foreigners, and may have committed nó particu°ffence against the United States, The only question is, has the legislature enacted such a law ? Do the words of the act authorize the courtsof the union-to inflict its penalties on persons who are not citizens of the United States, nor sailing under their flag, ñor offending particularly against them?

The words of the section are in terms of unlimited extent. The words “any person or persons,” are broad enough to comprehend every human being.. But.general words must not only be limited tocases within the jurisdiction*of the1 state, but also to those objects to which the legislature intended to apply them. Did the legislature intend to apply these words to the subjects of a foreign power, who. in a foreign ship may commit murder or robbery. on the high seas ?

The title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the legislature. The title of this act is, “an act for the punishment of certain crimes against the United States.” It would Seem that offences against the United States, not offences against the human race, were the crimes which the legislature intended by this law to punish.

The act proceeds, upon this idea,'and uses general terms in this limited sense. In describing those wh& may commit misprision of treason or felony, the words used are “any petson or persons yet these words are necessarily confined to any person or persons owing permaraent or temporary allegiance to the United States.

The 8th section also commences with the words «any person or persons.” But these words must be limited in some degree, and the'intent of the legislature will determine the extent of this limitation. For this intent we must examine the law. The sucreeding member of the sentence commences with the words, “if any captain or mariner of any ship or other vessel, shall piratically run 'away with sueh ship or vessel, or any goods or merchandize, to the value of fifty dollars» or yield up such ship or vessel voluntarily to any pirate.”

The words “any captain, onmaoner of any ship1 or other vessel,” ' comprehend- all captains and mariners, as entirely as the words “any person or persons,” comprehend the whole human race. Yet it would be difficult to believe that the legislature intended to punish the captain or mariner of a- foreign ship,, who should fun away with such ship,, and. dispose of her in a foreign port, or who should steal any goods from such ship to the value of fifty - dollars,, or who should deliver her up to a pirate when he; might have defended her, or- even according to prb1-vious arrangement. The third member .of the' sentence also begins with the general words “any- sea" man. But it; cannot be supposed that the legisla-' ture intended to punish a seaman on board a ship sailing under a foreign flag, under the jurisdiction of a foreign government, who should lay violent hands up. on his commander, or make a revolt in the ship. These are offences against the nation under whose flag the vessel sails, and within whose particular jurisdiction all on board the vessel are. Every- nation provides for such offences the punishment its own policy may dictate ; and no general words of a statute ought to be construed to embrace them when committed by for-' eigners against a foreign government.

That the general words'of the two latter members of this sentence are to be restricted to offences committed ' on board the'vessels of the United States, furnishes strong reason for believing that the legislature intended to impose the same restriction on the general words .used.in the first member of the sentence.

This construction derives aid from the 10th section of the ac,t. > That section declares, that “ any person’’’ who shall “knowingly and wittingly aid and assist, procure, command, counsel, or advise, any person or persons, to do or commit any murder or robbery, &c.” shall be-an accessory before the fact, and, on conviction, shall suffer death.

It will scarcely be denied that the words “ any person,” when applied to aiding or advising a fact, are as extensive as the same words when applied to the commission of that fact. Can it be believed that the legislature intended to punish with death the subject of a foreign prince, who, within the dominions of that prince, should advise a person, about to sail in the ship of his sovereign, to commit murder or robbery ? If the advice is not a crime within the law, neither is the fact advised a crime within the law.

The opiniori formed by the court on this subject might be still farther illustrated by animadversions on other sections of the act. But it would be tedious, and is thought unnecessary.

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 vjessel .bqlonging exclusively to subjects of a foreign stale,, is not a piracy within the true intent and meaning of the act for ^ pUn¡s},meat of certain , crimes against the United States;

Whim a civil war rages in a Wished* esta’ vernment, «reels itself into a distinct §»!*courts^of vieivrach new iy constituted government uisviewed by and executive •««ntQfihe U.

This opinion will probably decide the case to which, it is intended to apply.

Those questions which respect the rights of a part of a foreign empire, which asserts,and is contending for independence, and the conduct which must he observby the courts of the union towards the subjects of such section of an empire who may be brought before tribunals of this country, are equally delicate and i J dlfnc ult.

As it is understood that the construction which bas been given to the a.ct of congress, will render a particular answer to them unnecessary, the court will . ‘ . only observe, that such questions are generally rather political than legal in their character. They belong properly to tuose who can declare what the law shall be ; who can place the nation in such a position with respect to foreign powers as to their own judgment shall appear wise ; to whom are entrusted all its. foreign relations ; than to that tribunal whose power as well as duty is confined to the application of the. rule which the legislature may prescribe forjt. In such contests a nation may engage itself with the one. party or the other — may observe absolute.neutrality — - may recognize the new state absolutely — or may make a limited recognition of it. The proceeding, in courts mpt depend so entirely on the course^ of the governmentj that it is difficult to give a precisp answer tb questions which do not refer to á particular nation.— It may be said, generally, that .ii the government remains neutral, and recognizes the existence of a civil war, its courts cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy. To decide other wise,, would be to determine that the war prosecuted by one of the parties was unlawful, and would be to arrange the nation to which the court belongs' against that party. This would transcend the limits prescribed to the judicial department.

The»air.e twbmony which would be suffident to prove that a vessel or person is in the service of an acknowledged, state, is admissible to prove that they nrein the service of a newly created government

it follows as a consequence, from this of the , . . subject that persons or vessels employeu the service óf a self declared government, thus acknowledged to be maintaining its separate existence by war, must be permitted to prove the fact of their being actually employed in such service, by the same testimony which would be sufficient to prove that such vessel or person was employed in- the service of an acknowledged statel The seal of such acknowledged government cannot he permitted to prove itself; but it may be proved by some testimony as the nature of the case admits ; and the fact that such vessel or person is employed may be. proved without proving the seal.

Mr.. Justice Johnson.

The first of these questions arises on the eonstrubtibn of the first division of the 8th section of the act for the punishment of certain crimes.

That act comprises two classes of cases, the second of which may again be subdivided into two divisions. In the -second class of cases, e.ach crime is specifically described in the ordinary mode of defining crimes, and so far the. constitutional power of defining and punishing, piracies and felonies on the high seas, is' strictly complied with. But, whh regard to the first class of cases, the legislature refers for a definition to other sources — to information not to be found in that section itsélf. The words are these : ££If any persons shall commit, upon the high seas, &c. murder or robbery,, or ,any other offence, which, if committed in the body of a county, would, by the laws of the United States, be punishable with death, &c. such person shall, upon conviction thereof, suffer death.” Thus referring to the common law definition of murder and robbery alone, or to the common law definition of murder and robbery with the superadded statutory, requisite of being made punishable with death, if committed^on land, in order to»define the offence which, under that section, is made capitally punishable.

The crime of robbery is the offence charged in this .indictment, and the question is, -whether it- must not be shown that it must have been made punishable with death, if committed on land, in order to subject the offender1 to that punishment, if committed on the high seas. And singular as it may appear, it really is the fact in this case,, that these mens’ lives may depend upon a comma more or less, or upon the question whether a relative, which may take in three antecedents just as -well as one, shall he confined to one alone. Upon such a question I here solemny declare, that I never will consent to take the life of any man in obedience to any court; and if ever fore ed to choose between obeying this court, on such a point, or resigning my commission, I would not hesitate adopting the latter alternative.

But to my mind it is obvious, that both the intent of the legislature, and the construction of the words, are in favour of the prisoners. This, however, is more than I need contend for, since a doubt relative to that construction or intent ought to be as effectual in their favour, as the most thorough convictión.

When the intent of the legislature is looked into, it is as obvious as the light, and requires as little reasoning to prove, its existence, that the object proposed was with regard to crimes which may be committed either ■on the sea or land', to produce an uniformity in the punishment, so that where death was inflicted in the one case’, it should be inflicted in another. And congress certainly legislated1 under the idea, that the pun* ishment of death had been previously enacted for. the crime of robbery pn laud, as it had in fact been , for murder, and some other crimes. And in my opinion* this intent ought to govern the grammatical construction, and make the relative to refer to ajl three of the antecedents, murder, robbery, and other crimes, instead of-being confined to the last alone. That it may be so applied consistently with grammatical correctness, no one can deny; and if so, in favorem vite, we are, in my opinion, legally bound to give it that construction. Again ; there, is no reason. to ¿think that the word other is altogether a supernumerary member of the sentence. To give the construction contended for in behalf of the United States, that word mu§f be rendered useless and inoperative; the sentence has the same meaning with or without it. But if we retain it, and substitute.its. definition, or examine its effect upon the meaning of the terms associated with it, we then have the following results : other is commonly defined to mean not the same, or (what is certainly synonymous,)1 not before mentioned. With this expression, the sentence.would read thus : “murder, or robbery, or any offence not before mentioned,” for which, the punishment of death is by law inflicted. And as the use of the comma is exceedingly arbitrary and indefiite, by expunging all the cominos from the Sentence the meaning becomes rtill more obvious. Or, if instead of subsisting the words not before mentioned, we introduce the single term tin enumerated, in the- sense of which the term other is unquestionably used by the legislature, the conclusion becomes irresistible in favour of.the prisoners. There is another view of this subject that leads to the same conclusion.; by supplying an obvious elision, the same'.meaning- is given to this section. The word other is responded to by than, and the repetition of the excluded words’ is understood. Thus,in the case before us, by supplying the- elision, we “make murder, robbery,, or any crime other than murder or robbery,!’ made punishable, &c, the signification of which .words, had they been used, would have left no doubt.

There are several inconsistences growing out of a construction unfavourable to the prisoners, which merit the. most serious consideration. The first is, the most sanguinary character that it gives to this law in its operation ; for it is literal!y true, that under it a whole ship’s crew may.be consigned to the gallows, for robbing a vessel of a single chicken,■ even although a robbery committed on land for thousands, may not have been made punishable beyond whipping or confinement. If natural reason is not to be consulted on this point, at least the mild and benignant spirit of the laws of the United States merits attention. With regard to the mail'.this inconsistency actually, may occur under' existing laws, should the mail ever again be carried by water, as it Ibas, been formerly. This cannot be consistent with’the intention of the legislature.

But, it is contended, if congress had not intended, to make murder and robbery punishable with death,, independently of the circumstance of . those offences being so made punishable when committed on land} they would have omitted those specified crimes altogether from Ibis section, and have enacted generally^, that all crimes made . punishable with death on land should be.punishable with death if committed on .the seas, without enumerating murder and robbery.— This is fair reasoning; and in any case but one of life and death, it might have some weight.. But in no case, very great weight; because, in that respect, a legislature is subject to no laws in the selection of the course to be pursued. In this case, the obvious fact is, that they . commenced enumerating, and fearing some omission of crimes then supposed subject by law to. death,these general descriptive words are resorted to. But every other crime that' this division of. the section comprises was punishable with death, both these which precede robbery in the .enumeration., and those which come after. Robbery, except in case of the mail, stands alone; and, no doubt, was introduced under the idea, that that also had the same punishment attached to it. If it had not, in fact,, then it was the case on which the legislature intended to act; and according to my views of the grammatical or philological construction of the sentence, it. is one on which they have not acted.. This construction derives considerable force, also, from the consi deration that this act is framed on t he model of the British statute, which avowedly had' this uniformity for its object.

The second question proposed in this case is one on which, I presume;-Iheré can be no1 doubt. For the definition of robbery under this act we must look for the definition, of the term, in the common law, or we will find it no where; and, according to my construction, superadd td tfctit definition the circumstance of its being made punishable With death, under, the laws of the United States, if commitfsd on land, and you have described the offence made punishable under this section.

There are eleven questions certified from the circuit court of Massachusetts; but of those eleven,. these two- only appear to me to arise offt of the case. The transcript contains nothing but the indictment and impannelling of the jury. No motion; no evidence; no demurrer ore tenus, or case stated, appears upon the transcript, on which the remaining questions could arise. On the indictment the two first questions might well have been raised by the court themselves',, as of counsel for the prisoners ; but as far as appears to this court,.all the other questions might as well have been raised in any other case; I here enter my protest against having these general questions adjourned to this court. We are constituted to decide causes, and not to discuss themes,- or digest systems. It is true, the words of the act, respecting division of opinion in the circuit court, are general; but independently of the con~ sideration that it was not to be expected' that the court could be divided, unless upon questions arising out of some cause depending, the words in the first proviso, “ that the cause may be proceeded in,” plainly show that the questions contemplated in the act are questions arising in a cause depending-; and if so, it ought to be shown that they do arise in $Jie cause,. and are not merely hypothetical. In the case of Martin v. Hunter, this court expressly acted upon this principle, when it went into a consideration of the questión, whether any estate existed in the plaintiff in error, before it would consider the question on the construction of the treaty, as applicable to that estatp.

If, however, it becomes necessary to consider the other questions in this case, I will lay down a few general principles, whith, I believe, will answer all : 1. Con gress can inflict punishment on offences committed (jii board the vessels of $he United States, or by citizens of the United States, any where ; but congress cannot make that piracy which Í3 not piracy by the law ®f ha* lions, in order to give jurisdiction to its own courts over such offences.

2. When open war exists between a nation and its subjects, the subjects of the revolted country are no-^010 ]ja^]e j0 be punished as pirates, than the subjects ■ Who adhere to their allegiance; and whatever .immunity the law of nations'gives to the ship, it extends to atf who serve on board of her, excepting duly the responsibility of individuals to the laws of their respective .countries.

3. The proof of a commission is not necessary to exempt an individual serving on board a ship engaged in the war, because any ship rtf a belligerent may capture an enemy ; and whether acting under a commission or not, is an immaterial question as to third persons: he must answer that to his own government. Ttis only necessaty to prove two-'facts.: 1st. The existence of open war: 2dly. That the vessel is really documented, owned, and commanded as a belligerent vessel, and not affectedly so for .piratical purposes.

. 4. For proof of property and documents, it is not to be expected that any.better evidence can be produced •than the seal of the revoltecbcountry, with such reasonable evidence as the case may admit of, to prove it to be known as such; and a seal once proved, or admitted to a court, ought afterwards to be acknowledged by the court officially, at least, as qgainst the party who has once acknowledged it.

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, on the questions on which the judges of that court were divided; and was argued by counselon the part of the United States. On consideration whereof, this court is of opinion that a robbery committed on the high seas,- although such robbery, if comm'itted on land, would not, by the laws of the United States, be punishable with death, Is piracy under the eighth section .of an act entitled, "an act for the punishment of certain crimes against the United States;” and that the circuit courts of the United States have jurisdiction thereof. And that the crime of robbery, as mentioned in +he said act of congress, is the crime of robbery ns recognized and defined at cummonlaw

This court is further of opinion, that the crime oí 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 piracy within the true intent and meaning of the act, entitled, "an act for the punishment of certain crimes against-the Uuited States,” and is not punishable in the courts of the United States.

This court is further of opinion, that when a civil war rages in a foreign nation, one part of which separates itself from the old established government' and erects itself into a distinct government, the courts of the union must view such newly constituted government as it is viewed by the legislative and executive departments of the government of the United States. If the government of the union remains neutral, but recognizes the existence of a civil war, the courts of the union cannot consider as criminal those acts of hostility, .which war authorizes, and which the new government may direct against its enemy. In general, the same testimony which would be sufficient to prove that a vessel or a person is in me service of an acknowledged state, must be admitted to prove tüat a vessel or person is in the service of such newly erected government. Its seal cannot be allowed to prove itself, but may be proved by such testimony as the nature of the case admits. And the fact that a ves~ sel or person is in me service of such government may be established otherwise, should it be impraeticáble to prove the seal.

All which is ordered to be ' certified to the circuit court of the United States for the district of Massachusetts. 
      
      
         7 Cranch, 603. Ante, vol. 1, p. 304.
     