United States v. Klintock/Opinion of the Court

by John Marshall

The first and second points made by the counsel for the prisoner may be considered together.

As judgment can be arrested only for errors appaparent 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 recor 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 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 practised 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 offence.

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.

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 offence if committed 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 offences committed by persons who, at the time of 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 offences 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 offences committed against the particular sovereignty of a foreign power; but we think they ought to be applied to offences 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 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 practised 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 the 30th of April, 1790, does extend to all persons on board all vessels which throw off their national character by cruizing piratically and committing piracy on other vessels.

Notes