United States v. Klintock, 18 U.S. 144, 5 Wheat. 144, 5 L. Ed. 55 (1820)
A commission issued by Aury, as "Brigadier of the Mexican republic" (a republic whose existence is unknown and acknowledged), 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 jure belli, but animo furandi, the commission was held not to exempt the prisoner from the charge of piracy.
The act of the 30th of April, 1790, § 8, extends to all persons, on board all vessels, which throw off their national character, by cruising piratically, and committing piracy on other vessels.
United States v. Palmer, 3 Wheat. 610, explained and limited.
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 [*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 practising 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 master, sailed for Savannah, and entered her there, personating the Danish master 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: 1st. That Aury's commission exempts the prisoner from the charge of piracy. 2d. That the fraud practised on the Dane does not support the charge of piracy, as an act piratically done, and not in the exercise of belligerent rights. 3d. That the prisoner is not punishable under the provisions of the 8th section of the act of 1790.(a) [*146] 4th. That the act of the 30th of April 1790, § 8, "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.
The Attorney-General, for the United States.
[*149] MARSHALL, Ch. J., 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 cognisance 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, [*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 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 cognisance, to hear, try, determine and punish the same?" The same question was again propounded, so varied only as to comprehend the offence, if committed [*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 offences committed by persons who, at the time of [*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 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 be so construed as to extend to [**57] 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 [*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 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 cruising piratically, and committing piracy on other vessels.
fn(a) Which provides, "that if any person or persons shall commit, upon the high seas, or upon any river, haven, basin or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death; or if any captain or mariner of any ship or other vessel, shall, piratically and feloniously, run away with such ship or other vessel, or any goods or merchandise, 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 commander, 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 offender shall be deemed, taken and adjudged to be 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 be first brought."