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 Spartan; was owned without the United States, and cruized 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 captain, sailed for Savannah, and entered her there, personating the Danish captain 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: First, That Aury's commission exempts the prisoner from the charge of piracy. Second, 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. Third, That the prisoner is not punishable under the provisions of the 8th section of the act of 1790.*fn1 a 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 opinion of the court was delivered by: Mr. Chief Justice Marshall delivered the opinion of the Court.
The Attorney General, for the United States, argued, 1. That although the government and Courts of the United States had acknowledged the fact of the existence of the new States in Spanish America, so as to legitimate the war between them and the parent country,*fn2 b
yet Mexico was not among the provinces in actual revolt, nor was any such State de facto, known to exist as the Mexican republic, under the authority of which the commission in question was issued. And even if there were such a power in existence exercising all the rights of war, Denmark is not at war with it, or with any other of the Spanish American provinces. 2. Although the fraud practised on the Dane, may not be in itself an act of piracy, yet the seizure was a piratical act, and the ingredient of fraud cannot change its character for the better. 3. Neither is the prisoner protected by the decision of this Court in the case of the United States v. Palmer.*fn3 c
That case merely decides, that the crime of robbery committed on board a ship belonging to subjects of a foreign power, by a foreigner, is not piracy, within the act of the 30th of April, 1790, c. 36. s. 8. But it does not decide, that the same offence, committed by a citizen, on board of a vessel not belonging to the subjects of any foreign power, is not piracy. The vessel on board of which the crime was committed, does not belong to any particular nation. A pirate, being hostis humani generis, is of no nation or State. He and his confederates, and the vessel on board of which they sail, are outcasts from the society of nations. All the States of the world are engaged in a tacit alliance against them. An offence committed by them against
Mr. Winder, contra, contended, that this case was decided by that of the United States v. Palmer. The only argument which can be urged for extracting this case out of that decision is, that the prisoner, in the present case, is a citizen of the United States, although the offence itself was committed on board of a foreign vessel. But the whole reasoning of the Court in Palmer's case, as well as the certificate of the judgment, shows, that in order to constitute the offences enumerated in the statute, it is indispensably necessary, not that the party should be a citizen, but that the vessel against which, and the vessel on board of which the offence is committed, should belong to citizens. It is insisted on the other side, that although the vessel now in question, does not belong to citizens of the United States, yet she does not belong to any particular foreign nation; and, therefore, does not fall within the letter of the authority referred to. But if by her not belonging to any particular foreign State, it be meant that she is a piratical vessel, then the case falls within the late act of 1819, providing for the punishment of piracy as defined by the law of nations, and not within the act of 1790. If it falls within the act of 1790, then the act of 1819 is entirely superfluous. But that act was made to provide for the very defect in the former law which was for the first time discovered in the case of Palmer; and it is impossible, consistently with the authority of that case, to bring the present case within the statute, which was the only law in force, on the subject, at the time when this offence was committed.
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 ...