does not make it a felony; therefore, a pardon of all felonies generally does not extend to it.(b)1

(b) 1 Hawk. P. C. c. 37, s. 13; 3 Inst. 112; Co. Litt. 391; Moor 746; 2 East P. C. c. 17, s. 3, p. 796, where it is said that the offence does not extend to corruption of blood, at least where the conviction is before the Admiralty jurisdiction; though the contrary is holden by great authority upon attainder before commissioners, under the statute of Hen. 8. A fallacy seems to run through some of our books in saying that piracy was not felony at common law; this arose from such expressions as that it was a crime of which the common law did not take notice or cognizance-i. e., which was not triable by jury, the common law mode of trial. See 2 Hale 18, 370; 1 Hale 355. Lord Coke says it was felony Co. Lit. 391 a; 3 Inst. 112; 13 Rep. 51. In 40 Ass. Pl. 25, p. 245, a case of piracy is mentioned where a Norman captain was attainted of felony and hanged. See this case stated, 3 Inst. 21, and 1 Hale 100.

1 For the existing Acts of Congress on the subject of piracy see Revised Statutes of the United States, p. 1047. References to decisions under the various acts consolidated in this revision may be important. A robbery committed on the high seas is piracy under the Act of 1790, c. 36, s. 8, although such robbery, if committed on land, would not, by the laws of the United States, be punishable with death, and the courts of the United States have jurisdiction of such robbery and piracy: United States v. Palmer, 3 Wheat. 310, 326. The crime of robbery committed by a person who is not a citizen of the United States, on the high seas, on board a vessel belonging exclusively to foreigners, is not piracy under the Act of 1790, c. 36; and is not punishable under that act in the courts of the United States: Ibid. The Act of 1790, c. 36, s. 8, extends to all persons on board all vessels, who throw off their allegiance by cruising piratically, and committing piracy on other vessels: United States v. Klintock, 5 Wheat. 144, 149; United States v. Furlong, Ib., 52, 184, 192; United States v. Holmes, Ib. 412, 416. In such case, where by the evidence found on board, the vessel does not appear to be sailing under the authority of any particular nation, the burden of proof of the national character of the vessel is thrown on the prisoner: Ibid. Under the same act, if the offence be committed on board of a foreign vessel by a citizen of the United States, or on board a vessel of the United States by a foreigner, or by a citizen or foreigner on board a piratical vessel, the offence is equally cognizable by the courts of the United States; and it makes no difference whether the offence was committed on board of a vessel, or in the sea; as by throwing the deceased overboard and drowning him, or by shooting him when in the sea, though he was not thrown overboard: Ibid. A vessel lying in the open roadstead of a foreign country, is upon the high seas" within the Act of 1790, c. 36, s. 8; United States v. Furlong, 5 Wheat. 200. The Act of the 3d of March, 1819, c. 76, s. 35, which provides "that if any person or persons whatsoever, shall upon the high seas, commit the crime of piracy, as defined by the law of nations, &c., every such offender or offenders, shall, upon conviction thereof, &c., be punished with death," is a constitutional definition of the crime of piracy; that crime being defined by writers on the law of nations with reasonable certainty: United States v. Smith, 5 Wheat. 153, 160. Under the Act of Congress of March 3, 1819, to protect the commerce of the United States, and to punish piracy, any armed vessel may be seized and brought in, or any vessel the crew whereof may be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or seizure upon any vessel, and such offending vessel may he condemned and sold, the proceeds whereof to be distributed between the United States and the captors at the discretion of the court: United States v. Brig Malek Adel, 2 How. C. C. 210. It is no matter whether the vessel be armed for offence or defence, provided she commits the unlawful acts specified. To bring a vessel within the act it is not necessary that there should be either actual plunder or an intent to plunder: if the act be committed from hatred, or an abuse of power, or a spirit of mischief, it is sufficient. The word "piratical” in the act is not to be limited in its construction to such acts as by the laws of nations are denominated piracy, but includes such as pirates are in the habit of committing. A piratical aggression, search, restraint, or seizure, is as much within the act as a piratical depredation. The innocence or ignorance on the part of the owner of these prohibited acts will not exempt the vessel from condemnation. The condemnation of the cargo is not authorized by the Act of 1819. Neither does the law of nations require the condemnation of the cargo for petty offences, unless the owner thereof coöperates in, and authorizes the unlawful act: Ibid.

Robbery or forcible depredation upon the sea, animo furandi, is piracy by the law of nations, and by the Act of Congress : United States v. Furlong, 5 Wheat. 164, 184. The 8th section of the Act of 1790, c. 36, is not repealed by the Act of the 3d of March, 1819, c. 76, to protect the commerce of the United States, and punish the crime of piracy: United States v. Furlong, 5 Wheat. 184, 192. In an indictment for a piratical murder (under the Act of 1790, c. 36), it is not necessary that it should allege the prisoner to be a citizen of the United States, nor that the crime was committed on board a vessel belonging to a citizen of the United States, but it is sufficient to charge it, as committed on board such a

The offence of piracy is also provided against by several statutes. The 11 & 12 Will. 3, c. 7, s. 8, enacts, "that if any of his Majesty's natural-born subjects, or denizens of his kingdom, shall commit any piracy or robbery, or any act of hos

vessel, by a mariner sailing on board such a vessel: Ib. 194. The words "out of the jurisdiction of any particular state," in the Act of 1790, c. 36, s. 8, are construed to mean out of any particular state of this Union: Ib. 200. A commission issued by a person claiming to be the officer of a republic, whose existence de facto or de jure, is unacknowledged by the United States, will not authorize captures at sea. Quere. Whether a person acting with good faith under such a commission is guilty of piracy: United States v. Klintock, 5 Wheat. 144, 149. But however this may be, in general, under the peculiar circumstances of the case, showing that the seizure was made, not jure belli but animo furandi, the commission will not exempt the offender from the charge of piracy: Ibid. Each count in an indictment for piracy, is a distinct substantive charge; and if the indictment conform to any one of the counts, which in itself will support the verdict, it is sufficient. Thus, where in an indictment for piracy there were two counts, the one charging the offence as committed on the high seas, the other in a haven, basin or bay, a general verdict of guilty may be sustained: United States v. Furlong, 5 Wheat. 184, 201. The clause of the Act of Congress of April 30, 1790, c. 36, s. 8, which provides that "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 in which he may be first brought," applies only to offences committed on the high seas, or in some river, haven, basin or bay, not within the jurisdiction of any particular state; and does not apply to the territories of the United States, where regular courts for the trial of offences are provided by Congress: Ex parte Bollman and Swartwout, 4 Cranch 75, 135. The courts of the United States have no jurisdiction under the Act of April 30, 1790, c. 36, of the crime of manslaughter committed by the master upon one of the seamen on board a merchant vessel of the United States, lying in the river Tigris in the empire of China, thirty-five miles above its mouth, and a hundred miles from the shore, and below low-water mark: United States v. Wiltberger, 5 Wheat. 76, 93.

To constitute the offence of piracy within the act of 1790, by piratically and feloniously running away with a vessel, personal force and violence is not necessary: The United States v. Tully et al., 1 Gall. 247. The "piratically and feloniously running away with a vessel" within the act, is the running away with a vessel with the intent of converting the same to the taker's own uses, against the will of the owner. The intent must be animo furandi: Ibid. The Circuit Court of the United States has cognizance, under the act of 1790, s. 8, of piracy on board of an American ship, although committed in an open roadstead, adjacent to a foreign territory, and within half a mile of the shore: United States v. Ross, 1 Gall. 524.

The 8th and 9th articles of the rules for the government of the navy, adopted by the Act of April 23, 1800, relate to spoliations from prizes, not acts of piracy: U. States v. Jones, 3 Wash. C. C. 209. Robbery committed on the high seas is an offence punishable as piracy by the 8th section of the act of Congress of 30th April, 1790: Ibid. Robbery on the high seas by a commissioned privateer, is piracy under the act of 1790, and the law of nations: Ibid. A subordinate officer or private, committing piracy, cannot plead the orders of his superior officer as an excuse or justification: Ibid. A confederacy by American citizens on land, or on board of an American vessel, with sea-robbers or pirates by the law of nations, or the yielding up of a vessel by a citizen to such pirates, is an offence within the meaning of the 8th section of the act of 1790: United States v. Howard, 3 Wash. C. C. 340. Any intercouse with pirates, however inefficient or remote, which had a reference to the offence, or which had a tendency, or was intended in any manner to promote their views, is an offence within the 12th section of the Act of 1790: Ibid. American seamen put on board a vessel of the United States at a foreign port by an American consul, are within the meaning of the Act of April 30, 1790 (1 Story 84), which declares it to be piracy to make a revolt, and a misdemeanor to confine the master, &c. They are bound to all the obligations and duties which exist in the case of articled seamen: United States v. Sharp, 1 Peters' C. C. 118, 121. To convict of this offence, it is not necessary that the defendants should be proved individually to have used any force or threats to compel the captain to confine himself to his cabin, or to resign his command. It is sufficient, if they joined in the general confederacy, and by their presence countenanced the act: Ibid. 118, 126. It seems that to make a revolt under the act, is to throw off all obedience to the master; to take possession of the vessel by the crew; to navigate her themselves, or to transfer the command to some other person on board; and such offence may be committed on board merchant vessels as well in time of peace as in time of war: Ibid. 121, 122. It seems that to bring a case of revolt within the act of Congress, an attack upon the master should be accompanied by some evidence indicating on the part of the assailants, an intention to take possession of the vessel: United States v. Smith, 3 Wash. C. C. 78. Confining the captain while the vessel is in the bay or river of a foreign country, is an offence within the 12th section of this act; and an indictment charging the offence to have been committed on the high seas is good: Ibid. Any con

tility against others his Majesty's subjects, upon the sea, under color of any commission from any foreign prince or state, or pretence of authority from any person whatsoever, such offender and offenders shall be deemed, adjudged, and taken to be pirates, felons, and robbers;" and being duly convicted thereof, according to that Act, or the 28 Hen. 8, c. 15, shall suffer such pains of death, (c) and loss of lands, goods, and chattels, as pirates, &c., upon the seas ought to suffer. And the 18 Geo. 2, c. 30, enacts, "that all persons, being natural-born subjects or denizens of *145] his Majesty, who during any *war shall commit any hostilities upon the sea, or in any haven, river, creek, or place, where the admiral or admirals have power, authority, or jurisdiction, against his Majesty's subjects, by virtue or under color of any commission from any of his Majesty's enemies, or shall be any other ways adherent, or giving aid or comfort to his Majesty's enemies upon the sea, or in any haven, river, creek, or place. where the admiral or admirals have power, authority, or jurisdiction, may be tried as pirates, felons, and robbers in the said

(c) Repealed by 1 Vict. c. 88, s. 1. See sec. 2, &c, post, p. 146.

finement of the master of a vessel, whether by depriving him of the use of his limbs, or by shutting him up in the cabin, or by intimidation preventing him from the free use of every part of the vessel, amounts to a confinement within the 12th section of this act: Ibid.; United States v. Sharp, 1 Peters' C. C. 122. If the captain was restrained from performing his duties by such mutinous conduct of the crew, as might easily intimidate a firm man, this will amount to a constructive confinement within the meaning of the act; and it makes no difference in this respect, that the master did in fact go unmolested to every part of his vessel, whenever he pleased, if he was compelled by a regard to his own safety to go armed, and if, from all the circumstances of the case, it was necessary or prudent for him to do so: United States v. Bladen, 1 Peters' C. C. 213, 214. Seizing the person of the master, although the restraint continue but a minute or two, amounts to an actual confinement within the law: Ibid.; United States v. Smith, 3 Wash. C. C. 525. A master of a vessel may so conduct himself as to justify his officers and men placing a restraint upon him, to prevent his committing acts which may endanger their lives; but an excuse of this kind must be listened to with great caution, and such measures should not continue beyond the existence of the danger which occasioned it: United States v. Sharp, 1 Peters' C. C. 127. A battery by the master in pushing defendant from him with a chair, did not justify a confinement: United States v. Bladen, 1 Peters' C. C. 213, 214.

An indictment under this act, which charged in the same count, the offence of making a revolt and confining the captain was quashed: Ibid. 131. If the crew combine together to refuse to do duty, and actully refuse until the master complies with some improper request on their part, it is an endeavor to make a revolt within the Crimes Act of 1790, ch. 36, s. 12: United States v. Gardiner, 5 Mason 402. To constitute the offence, it is necessary that there should be some effort or act to stir up others of the crew to disobedience to the master: Ibid. Mere insolent conduct, disobedience of orders, or even violence committed on the person of the master, unattended by other circumstances, will not amount to an endeavor to revolt. Those acts must be coupled with an intent to subvert the authority of the master and to displace him from his command. A mere conspiracy of the crew to make a revolt will not amount to an endeavor to make it, unless it be followed up by some overt act tending to that end; nor is concert an essential ingredient in constituting the offence: United States v. Kelly, 4 Wash. C. C. 528. Judge Washington has declined giving judicially a definition of a revolt: United States v. Haskell, 4 Wash. C. C. 402; United States v. Kelly, Ibid. 529. It seems the making a revolt under the act is where the crew throws off all obedience to the commander, and forcibly take possession of the vessel by assuming and exercising the command and navigation of her, or by transferring their obedience from the lawful commander to one who has usurped the command: United States v. Haskell, et supra. See United States v. Haines, 5 Mason 272; United States v. Gardiner, Ibid. 402; United States v. Savage, Ibid. 469. The offence may be committed in any kind of a vessel: United States v. Kelly, supra.

See United States v. Peterson, 1 Woodbury & Minot 305; United States v. Staley, Ibid. 338.

As to what will constitute a confinement of the master within the purview of the act, see United States v. Stevens, 4 Wash. C. C. 547; United States v. Savage, 5 Mason 460.

Semble, that the mate is a seaman within the Crimes' Act of 1790, ch. 36, s. 12: United States v. Savage, Mason 460; but see Ely v. Peck, 7 Conn. 239.

As to the offence of running away with a vessel, see United States v. Haskell, 4 Wash. C. C. 402.

Court of Admiralty, on ship-board, or upon the land, in the same manner as persons guilty of piracy, felony, and robbery, are by the said Act(d) directed to be tried; and such persons being upon such trial convicted thereof, shall suffer such pains of death,(e) loss of lands, &c., as any other pirates, felons, and robbers ought, by virtue of the 11 & 12 Will. 3, c. 7, or any other Act, to suffer "(ƒ)

The 11 & 12 Will. 3, c. 7, s. 9, enacts, "that if any commander or master of any ship, or any seaman or mariner, shall, in any place where the admiral hath jurisdiction, betray his trust, and turn pirate, enemy, or rebel, and piratically and feloniously run away with his or their ship or ships, or any barge, boat, ordnance, ammunition, goods or merchandize; or yield them up voluntarily to any pirate; or shall bring any seducing message from any pirate, enemy, or rebel; or consult, combine, or confederate with, or attempt or endeavor to corrupt any commander, master, officer, or mariner, to yield up or run away with any ship, goods, or merchandizes, or turn pirates, or go over to pirates; or if any person shall lay violent hands on his commander, whereby to hinder him from fighting in defence of his ship, and goods committed to his trust, (g) or shall confine his master, or make or endeavor to make a revolt in the ship, he shall be adjudged, deemed, and taken to be a pirate, felon, and robber, and being convicted thereof according to the direction of this Act, shall suffer death(e) and loss of lands, goods, and chattels, as pirates, felons, and robbers upon the seas ought to suffer."

By the 8 Geo. 1, c. 24, s. 1, “in case any person or persons belonging to any ship or vessel whatsoever, upon meeting any merchant ship or vessel on the high seas, or in any port, haven, or creek whatsoever, shall forcibly board or enter into such ship or vessel, and though they do not seize or carry off such ship or vessel, shall throw overboard or destroy any part of the goods or merchandizes belonging to such ship or vessel; the person or persons guilty thereof, shall in all respects be deemed and punished as pirates aforesaid."

The 8 Geo. 1, c. 24, s. 1, enacts that if any commander or master of any ship or vessel, or any other person or persons, shall anywise trade with any pirate by truck, barter, exchange, or in any other manner, or shall furnish any [*146 pirate, felon, or robber upon the seas, with any ammunition, provision, or stores of any kind; or shall fit out any ship or vessel knowingly, and with a design to trade with, or supply, or correspond with any pirate, felon, or robber upon the seas; or if any person or persons shall any ways consult, combine, confederate, or correspond with any pirate, felon, or robber on the seas, knowing him to be guilty of any such piracy, felony, or robbery, every such offender and offenders shall be deemed and adjudged guilty of piracy, felony, and robbery." The Act further provides, that every offender convicted of any piracy, felony, or robbery, by virtue of the Act, shall not be admitted to have the benefit of clergy."(h)

By the 5 Geo. 4, c. 113, dealing in slaves upon the high seas, or in any haven,

(d) 11 & 12 Will. 3, c. 7.

See sec. 2, &c., post, p. 146.

(e) Repealed by 1 Vict. c. 88, s. 1. (f) Sec. 2 contains a proviso that any person tried and acquitted, or convicted according to the Act, shall not be liable to be indicted, &c, again in Great Britain or elsewhere, for the same crime or fact as high treason. But by sec. 3 the Act is not to prevent any offender, who shall not be tried according thereto, from being tried for high treason within this realm, according to the stat. 28 Hen. 8, c. 15.

(g) This last provision is similar to one in the 22 & 23 Car. 2, c. 11, s. 9, which is repealed by 9 Geo. 4, c. 31, s. 1, as relates to any mariner laying violent hands on his commander. This statute of Car. 2 contains also some provisions as to yielding without fighting, and as to mariners declining or refusing to fight and defend the ship when commanded by the master.

(h) Sec. 4 (but see now 1 Vict. c. 88, infra, as to the punishment), and by sec. 2 every vessel fitted out to trade, &c., with pirates, and also the goods shall be forfeited, half to the Crown and half to the informer. Offenders against this Act are to be tried according to the 28 Hen. 8, c. 15, and 11 & 12 Will. 3, c. 7. In the second edition, the 32 Geo. 3, c. 25, s. 12, was here inserted, but as that Act was only to continue in force during the then war with France, it seems to have expired. See 2 East P. C. c. 17, s. 7, p. 801, n. (a), and Crabb's Index to the Statutes, C. S. G. The 22 Geo. 3, c. 25, prohibits ransoming any ship belonging to any subject of his Majesty, or goods on board the same, which shall be captured by the subjects of any state at war with his Majesty, or by any persons committing hostilities against his Majesty's subjects.

&c., where the admiral has jurisdiction, except as by that Act is permitted, is made piracy, felony, and robbery, and the offenders made punishable as pirates, felons, and robbers upon the seas.(i)

The 1 Vict. c. 88 (which came into operation on the 1st October, 1837,)(h) repeals so much of the 28 Hen. 8, c. 15; 11 & 12 Will. 3, c. 7; 4 Geo. 1, c. 11, s. 7; 8 Geo. 1, c. 24, and 18 Geo. 2, c. 30, "as relates to the punishment of the crime of piracy, or of any offence by any of the said Acts declared to be piracy, or of accessories thereto respectively."

Sec. 2 enacts, "That from and after the commencement of this Act whosoever, with intent to commit or at the time of or immediately before or immediately after committing the crime of piracy in respect of any ship or vessel, shall assault, with intent to murder, any person being on board of or belonging to such ship or vessel, or shall stab, cut, or wound any such person, or unlawfully do any act by which the life of such person may be endangered, shall be guilty of felony, and being convicted thereof shall suffer death as a felon."()

Sec. 3. "From and after the commencement of this Act whosoever shall be convicted of any offence which by any of the Acts hereinbefore referred to amounts to the crime of piracy, and is thereby made punishable with death, shall be liable, at the discretion of the Court, to be transported(m) beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years,(n) or to be imprisoned for any term not exceeding three years."

*Sec. 4. "In the case of every felony punishable under this Act every *147] principal in the second degree and every accessory before the fact shall be punishable with death or otherwise in the same manner as the principal in the first degree is by this Act punishable; and every accessory after the fact to any felony punishable under this Act shall, on conviction, be liable to be imprisoned for any term not exceeding two years."(o)

Sec. 5. "Where any person shall be convicted of any offence punishable under this Act for which imprisonment may be awarded, it shall be lawful for the Court to sentence the offender to be imprisoned, or imprisoned and kept to hard labor, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labor, not exceeding one month at any one time, and not exceeding three months in any one year, as the Court in its discretion shall seem meet." (p)

(i) See post, Of dealing in Slaves.

(k) By sec. 7.

(1) This sentence may be recorded by the 4 Geo. 4, c. 48, s. 1, and where the indictment charges a stabbing, cutting, or wounding, the jury may acquit of the felony, and convict of the stabbing, cutting, or wounding by the 14 & 15 Vict. c. 19, s. 5, post. (m) Penal servitude by the 20 & 21 Vict. c. 3, s. 2, ante, p. 4.

(n) Not less than seven years by the 9 & 10 Vict. c. 24, s. 1, and not less than three years' penal servitude by the 20 & 21 Vict. c. 3, s. 2, ante, pp. 3, 4.

(0) Sec. 6 provides that this Act shall not alter the provisions of the 5 & 6 Will. 4, c. 98, and 4 Geo. 4, c. 64.

(p) This statute having repealed the punishment of piracy at common law, which was before punishable by the 28 Hen. 8, c. 15, s. 3, with death without benefit of clergy, a difficulty arises as to what is now the punishment for that offence. The 39 Geo. 3, c. 37, s. 1, provides, "That all and every offence and offences, which, after the passing of this Act, shall be committed upon the high seas out of the body of any county of this realm shall be, and they are hereby declared to be offences of the same nature respectively, and to be liable to the same punishments respectively, as if they had been committed upon the shore, and shall be inquired of, heard, tried, and determined, and adjudged in the same manner as treasons, murders, and conspiracies are directed to be by the same Act" (28 Hen. 8, c. 15, post, p. 153). It should seem, therefore, that this Act, by making all offences committed on sea of the same nature as if they were committed on shore, has made piracy at common law a felony, which it was not at common law, or by the 28 Hen. 8, c. 15 (see ante, p. 144). By the 1 Geo. 4, c. 90, any person found guilty of any capital crime or offence committed upon the sea, which, if committed upon the land would be clergyable, is entitled to the benefit of clergy in like manner as if he had committed such offence upon land. By the 7 & 8 Geo. 4, c. 28, s. 6, clergy was abolished; and by sec. 7 no person convicted of felony was to suffer death unless for some felony excluded from clergy, on or before the first day of that session of Parliament; and by sec. 12, "all offences prosecuted in the High Court of Admiralty shall, upon every first and subsequent con