[United States v. Kessler.]

possession of her? Was it by violence, or otherwise? with the consent, or against it, of the master? The manner of their taking possession is of the very essence of the charge. Suppose the crew had assaulted and confined the captain, and then taken the vessel, could it be argued that this was a distinct offence in itself, and therefore could not be given in evidence?

The evidence was admitted.

Before the termination of the examination of this witness, the court adjourned. The district attorney and the counsel for the prisoner, agreed that the jury might separate; the court gave no order or opinion on the subject, but left it entirely between the counsel.

The testimony given by several witnesses, on the part of the prosecution, being closed,

Mr Brewster, for the defendant, said that he had no evidence to offer. He stated his ground of defence:

1. That the evidence has not made out a case of general piracy, but that the defendant, if guilty of any thing, is guilty of a piracy, made so by the acts of congress.

2. That the power to define and punish piracy, given to congress by the constitution, does not extend to any vessel under any flag but that of the United States, although the offender be a citizen of the United States; that this being a French vessel, and the defendant a mariner on board of her, he had, for the time being, expatriated himself, and if guilty of any offence, can be punished only by the laws of France; that there is no evidence that the defendant is a citizen of the United States; that the vessel was not scuttled, nor the robbery committed within a marine league of the coast of the United States, and if they were, yet the acts of congress do not make such acts piracy; that the indictment is imperfect and insufficient; there is no averment that the vessel was American; it is necessary to aver that the defendant is an American citizen, and that the owners were Americans.

Mr Dallas, for the prosecution.

As to the marine league, the original act being done on the high seas, common to all nations, cannot divest the owners of their property, or give security for the perpetrators of the crime. The ownership remained when the vessel was brought within the juris

[United States v. Kessler.]

diction of the United States; they were divested of their property by scuttling the vessel, and not until then; and this was done within the marine league. Like the case of stealing in one county and taking the goods into another; every detention is a fresh taking.

The act of congress on which this indictment was framed, was passed 15th of May 1820, sect. 3, subsequent to the decisions of the supreme court, and was meant to embrace the cases before omitted as offered by those decisions. This law has a more comprehensive phraseology than the law of 1790; "any person in and upon any ship or vessel;" that part of the indictment which relates to running away with the vessel is founded on the act of 1790.

If the fact can be established that the crime was committed within a marine league of our coast, there can be no doubt of the jurisdiction; this is within the territorial limits of the United States. Vattel, b. 1, c. 21, p. 204, sect. 288, 295; Vattel, b. 2, ch. 7, sect. 84; 1 Azuni 204; Church v. Hubbart, 2 Cranch 234; 1 Gall. 62; 3 Story's Laws of 1798; act of 1820; Palmer's Case, 3 Wheat. 630. I agree that the general words of the law of 1820 must have some limitation and restriction, to places and persons over which the legislative power of the United States extends. Foreign territory and foreign vessels, as an extension of that territory, are beyond our legislation, but American citizens are subject to it wherever they are. Vattel, b. 2, ch. 8, sect. 107, 108, 111. It is true that this reasoning may make the defendant amenable to another jurisdiction, but cannot throw off this. 3 Wheat. 610, 630, 641; 5 Wheat. 144; Klintock's Case, 147, 152; 5 Wheat. 195; United States v. The Pirates, 5 Wheat. 184, 192; United States v. Furlong 197, 198; United States v. Holmes, 5 Wheat. 412.

Mr Brewster, for the defendant.

There are four counts in the indictment; in some of them defendant is not stated to be a citizen of the United States. The charge is for piracy, not robbery or murder. Piracy is not a common law offence, or punishable by the courts of common law. 7 Dane's Ab. 88; art. 6, sect. 2; 1 Br. Adm. and Civ. Law 461; Vattel, b. 1, ch. 23, sect. 280; 4 Bl. 71, 73; Act of March 1819; 3 Story's Laws 1739. The piracy is charged under the acts of congress. It is admitted that the vessel was altogether French, sailing under the French flag.

As to the marine league. If the vessel was French, the offender

[United States v. Kessler.]

was out of the jurisdiction of the United States, as much as if the crime had been committed at Bourdeaux; but the vessel was not within fifteen miles of the shore until dark ; at dark they took their course for the light-house. As to bringing the property within the United States; it is not like the case of taking it from one county to another; the principle does not apply to the case of carrying the stolen goods from one state to another.

The vessel was a distant floating colony of France; 1 Story's laws 86, Act of April 1790, sect. 16; thus if the act was done within the United States, it should be punished as a larceny, as within the body of a county, not as a piracy on the high seas. As to state rights, 6 Dane's Ab. 359, sect. 18; as to the admiralty jurisdiction, Ibid. 356, art. 11, sect. 13, 14, 15, 16.

The United States have a jurisdiction within the limits of any state or over offences committed within the body of any county of a state, only on the subjects specially mentioned in the constitution.

The acts of congress contemplate no piracy unless it is committed on the high seas, or on board of some public vessel, or a vessel owned by citizens of the United States. The words any person and any vessel are used in every section of the act of 1790; sect. 2, treason; sect. 18, perjury; sect. 20, bribery. Palmer's Case, 3 Wheat. 610; United States v. Howard et al., 3 Wash. C. C. 344; 7 Dane 93, sect. 11, 92, 9; Vattel, b. 1, ch. 23, sect. 281, 289; Ibid., b. 2, ch. 8.

Defendant by enrolling himself as one of the crew of the vessel submitted himself to the laws of France regulating its commerce.

The act of 1825 was intended to meet the decision in Wiltberger's Case; if congress had intended to change the law as given in Palmer's Case by the supreme court, they would have been equally clear and explicit in doing it. The Pirates, 5 Wheat. 186, 195. Judge Johnson says, that Palmer's Case covers the case of an American as well as a foreigner on board a foreign vessel. Holmes's Case, 5 Wheat. 416; as to citizenship of defendant, 1 Caine 59; Coxe's Dig. 432, sect. 224.

If defendant has committed any offence it is against the law of France; such cannot be punished here; Chief Justice Tilghman so decided in the case of a murder committed in Ireland.

As to the facts, the evidence is insufficient for a connected conviction; United States v. Ross, 1 Gall. 624; United States v. Vogle, 2 Dall. 347; Phill. on Ev. 79.

Mr. Dallas replied:

[United States v. Kessler.]

The acts of April 1790, of March 1819 and May 1820, were passed to meet the decision in Howard's Case, which, for the first time, denied the jurisdiction of the courts of the United States of a general piracy. There are no words in the act of 1820 to restrict the construction as in the act of 1790.

Why enact the law of 1820, if it is the same with that of 1790? There has been no decision on the law of 1820; it is now to be decided for the first time.

Replies to Mr Brewster's observation on the facts and evidence of the case.

THE COURT adjourned.

On Friday morning, October 23d, Judge HOPKINSON delivered the following charge to the jury.*

It is a matter of much anxiety and regret to me, and I doubt not to you, that we are deprived of the aid of the learning and experience of the presiding judge of this court, in the trial of this cause; and if any arrangement could have been made by which the numerous and important questions of law that have been agitated, could have been reserved for his opinion, and, if necessary, carried to the supreme court, it would have been very agreeable to me. But the same law which authorizes a single judge to hold this court, makes it his duty to do so whenever required. The defendant has put himself on his trial before us, and he has a right to your judgment and mine on his whole case. Our course is a plain one. We must render that judgment honestly and fearlessly, according to our own consciences and true opinion; and, doing this, we shall be acquitted of any wrong, even if we fall into error, and stand justified to ourselves and our country.

In the indictment now submitted to you, Henry Kessler, the prisoner at the bar, stands charged with four distinct offences; and your verdict, governed by the evidence and law of the case, will decide whether he is guilty or innocent of all or any of them. It is put beyond all doubt that a fearful crime has been commited, which, indeed, has seldom been exceeded in deep malignity and reckless cruelty. It is our duty, nevertheless, to inquire, with a deliberate

Judge Washington was confined to his lodging by sickness.

[United States v. Kessler.]

and just impartiality, whether the defendant was an actor in the bloody scene, what part he took in it, and whether we have a warrant and authority to bring him to an account for it. The first inquiry will be determined by the evidence you have heard; and the second, by the law of the land, to which we all owe an implicit obedience.

The indictment contains four counts:

The first, in substance, charges that the prisoner, upon the high seas, with certain persons unknown, on board of a brig or vessel called L'Eclair, made an assault upon the master of the said brig, put him in fear, and robbed him of certain goods and moneys belonging to him.

The second count charges the robbery to have been of the goods, effects, and moneys of persons unknown, and committed within a marine league of the coast of the United States.

The third charges the prisoner with piratically and feloniously running away with the said brig, and with certain goods, moneys, and effects belonging to persons unknown.

The fourth and last count charges the running away with the vessel and the stealing of the goods to have been done within a marine league of the coast of the United States.

It appears that in November last (1828), the brig L'Eclair was in the port of Philadelphia, when the defendant, with five other persons, shipped on board of her as mariners. There were besides on board, the captain, a mate, and a young Frenchman. The vessel sailed from Philadelphia for Goree, in Africa, where she arrived, and remained about a month,-she sailed from Goree to Cayenne, and arrived safely there; and remained there about six weeks. At this place the mate, who sailed with her from Philadelphia left her and another was taken in his place: but all the other persons who went out in her, were on board when she sailed from Cayenne.

For the occurrences that happened after the vessel left Cayenne, including the horrible transactions which have brought the prisoner to the bar, we are compelled to rely on the testimony of John Battiste who was cook and steward of the brig, and is the only witness produced to give an account of them.

Before I call your attention to the circumstances and facts testified by this witness, it will be well to explain to you the rules of law by which his credibility may be tested. John Battiste was on board the brig when the enormities were committed; he received, by fear and