WASHINGTON. Circuit Justice
(charging jury). The issue which you are to try is, whether the defendants are guilty of having combined, confederated, and consulted with pirates or robbers, knowing them to be guilty of any piracy or robbery. Your inquiries will consequently embrace the three following particulars:—1st. Had the alleged pirates been guilty of any act of piracy or robbery, at the time when the correspondence with them by the defendants is charged .to have taken placo?—2d. If so guilty, did the defendants know that fact?—3d. Did the defendants, having this knowledge, consult, correspond, combine, or confederate with the alleged pirates?—Unless you are perfectly satisfied, from the evidence upon each and all of these points, you ought to acquit the defendants.
The first inquiry involves the construction of the 12th section of the law under which the defendants are indicted; and the question is, whether the piracies and robberies intended by that section, are such as are declared to be so by the Sth section of the same law. or such as are defined and punished by the law of nations?
The opinion which has been entertained by some persons, that the courts of the United States might take cognizance of robberies and other piracies committed on the high seas, by non-commissioned sea rovers and others, contrary to the general law of nations, has never received the countenance of any of the courts of the United States.
A much more doubtful question, however, arose upon the construction of the act of congress. as to this offence, which was finally settled by the supreme court, in Palmer’s Case [3 Wheat. (16 U. S.) 610]. This was, whether robbery on the high seas, committed on board of a foreigh vessel, amounted to piracy, within the true intent and meaning of the 8th section, and was cognizable by the courts of the United States? The general and unqualified expressions of that section. most undoubtedly covered such a case; and yet it seemed difficult to believe, that the legislature could have intended to make many of the acts of piracy defined by that section, cognizable in an American court. It was, upon the whole, decided, that a robbery, committed by any person on the high seas, on board of a ship belonging exclusively to a foreign state, or to the subjects thereof, or upon the person of a subject of a foreign state, in a vessel belonging exclusively to subjects of a foreign state, is not piracy, within the true intent and meaning of the 8th section of that law. Although the of-fence of robbery is the only one stated in this decision; that being the only offence referred to in the question which was adjourned to the supreme court; yet there can be no doubt but that all the other acts of piracy, enumerated in that section, are included within the same principle. The 10th and 11th sections of the law, embrace the cases of ac-cessaries before and after the fact; and, consequently. the offences of these persons must partake of the nature of the principal of-fences, independent of the word “aforesaid,” which clearly refers to the piracies enumerated in the 8th section. We then come to the 12th section, upon one clause of which this indictment is founded. This section introduces a new set of offences, amounting only to misdemeanors, although they are de--Glared to amount to piracy and felony, by the statute of Geo. I. c. 24, from which this section was obviously borrowed. Many of these offences are the offences of principals; others, and particularly that for which these defendants are indicted, more nearly resemble those of accessaries. The argument is, that, as confederating with pirates is necessarily accessorial to the principal offence, and as the accessaries, under the 10th and 11th section's, can be guilty of no offence but such as is made so by the 8th section, the words “such piracies.” &c., in the 12th section, must find their antecedent in the same section. It is very true, that these words have no proper antecedent in the 12th section, and yet we think", that to refer them to the piracies stated in a remote section, with which the 12th section, is in no manner connected, and which embraces a different set of offences, would be inconsistent with the obvious in-tentiqn of the legislature, as well as with correct grammatical construction. The 10th and 11th sections, as before observed, refer to the Sth. not only by express words of reference. but because the offences mentioned in them are declared to be those of accessaries, before and after the fact; and they are, therefore. strictly within the rule accessorius seq-[393]*393uitur, &c. But these reasons do not apply to the clause of the 12th section under consideration. The word "such” is not synonymous with “aforesaid.” and has no necessary reference to the piracies defined by the 8th section of this act. The decision in Palmer’s Case, does not require such a construction;— if it did, we should not hesitate to give it. That ease decides, that the act of piracy must be committed on board of an American vessel; and, upon that principle, we are clear, that confederacy with pirates, on board of a foreign ship, would not be an offence within the 12th section. But in this case, the pilot boat is an American vessel, and the persons on board were citizens of the United States. The pirate, with whom the confederacy and correspondence takes place, may, in our opinion. be any sea robber or pirate, according to the general law of nations. Suppose, for . instance, the captain of an American vessel were to yield up his vessel to such a pirate; could it be contended, that it would not be within the meaning, as it most unquestionably is within the words, of the Sth section of the law? Upon the same ground, it appears to us, that, if a mariner endeavours to corrupt the master of an American vessel to go over to, or to confederate with pirates or sea robbers, whoever they may be. or to trade with them, or furnishing them with ammunition, &c.; or confederating or corresponding with them; are all offences within the words, as well as within the intent and meaning of the 12th section of this law; the word “such'” intending to relate, (though very inaccurately,) to pirates and robbers before mentioned.
The question of fact, which you have to de-cido unde'- this head, is, whether the men on board the schooner were pirates or robbers. according to the definition which we have just given of these words? Of this fact there is no positive proof; and what ground is there for presuming it? They offered the enormous sum of $5000 to be put on shore with five trunks.—They afterwards made an extravagant offer for the defendants’ skiff for the same purpose. In short, their whole conduct was mysterious, and highly suspicious. The defendants themselves thought so. It was such as might free any person from the charge of uncharitableness, who should believe that they had committed, or intended to commit, some crime. But, is the conclusion a necessary one, that that crime was piracy or robbery? We have not the slightest Information as to the history of these men at any time.—who they were—of what nation; —nor do we know the national character of their vessel; although the evidence, so far as it goes, would lead to the conclusion that she was Spanish. They might have acquired the property which they were so anxious to preserve, as well by robbery on land, by capture from Spanish subjects on the high seas, under a commission from the revolutionary government of South America, (which would not amount to acts of piracy,) as by unauthorized robbery on the high seas.
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WASHINGTON. Circuit Justice
(charging jury). The issue which you are to try is, whether the defendants are guilty of having combined, confederated, and consulted with pirates or robbers, knowing them to be guilty of any piracy or robbery. Your inquiries will consequently embrace the three following particulars:—1st. Had the alleged pirates been guilty of any act of piracy or robbery, at the time when the correspondence with them by the defendants is charged .to have taken placo?—2d. If so guilty, did the defendants know that fact?—3d. Did the defendants, having this knowledge, consult, correspond, combine, or confederate with the alleged pirates?—Unless you are perfectly satisfied, from the evidence upon each and all of these points, you ought to acquit the defendants.
The first inquiry involves the construction of the 12th section of the law under which the defendants are indicted; and the question is, whether the piracies and robberies intended by that section, are such as are declared to be so by the Sth section of the same law. or such as are defined and punished by the law of nations?
The opinion which has been entertained by some persons, that the courts of the United States might take cognizance of robberies and other piracies committed on the high seas, by non-commissioned sea rovers and others, contrary to the general law of nations, has never received the countenance of any of the courts of the United States.
A much more doubtful question, however, arose upon the construction of the act of congress. as to this offence, which was finally settled by the supreme court, in Palmer’s Case [3 Wheat. (16 U. S.) 610]. This was, whether robbery on the high seas, committed on board of a foreigh vessel, amounted to piracy, within the true intent and meaning of the 8th section, and was cognizable by the courts of the United States? The general and unqualified expressions of that section. most undoubtedly covered such a case; and yet it seemed difficult to believe, that the legislature could have intended to make many of the acts of piracy defined by that section, cognizable in an American court. It was, upon the whole, decided, that a robbery, committed by any person on the high seas, on board of a ship belonging exclusively to a foreign state, or to the subjects thereof, or upon the person of a subject of a foreign state, in a vessel belonging exclusively to subjects of a foreign state, is not piracy, within the true intent and meaning of the 8th section of that law. Although the of-fence of robbery is the only one stated in this decision; that being the only offence referred to in the question which was adjourned to the supreme court; yet there can be no doubt but that all the other acts of piracy, enumerated in that section, are included within the same principle. The 10th and 11th sections of the law, embrace the cases of ac-cessaries before and after the fact; and, consequently. the offences of these persons must partake of the nature of the principal of-fences, independent of the word “aforesaid,” which clearly refers to the piracies enumerated in the 8th section. We then come to the 12th section, upon one clause of which this indictment is founded. This section introduces a new set of offences, amounting only to misdemeanors, although they are de--Glared to amount to piracy and felony, by the statute of Geo. I. c. 24, from which this section was obviously borrowed. Many of these offences are the offences of principals; others, and particularly that for which these defendants are indicted, more nearly resemble those of accessaries. The argument is, that, as confederating with pirates is necessarily accessorial to the principal offence, and as the accessaries, under the 10th and 11th section's, can be guilty of no offence but such as is made so by the 8th section, the words “such piracies.” &c., in the 12th section, must find their antecedent in the same section. It is very true, that these words have no proper antecedent in the 12th section, and yet we think", that to refer them to the piracies stated in a remote section, with which the 12th section, is in no manner connected, and which embraces a different set of offences, would be inconsistent with the obvious in-tentiqn of the legislature, as well as with correct grammatical construction. The 10th and 11th sections, as before observed, refer to the Sth. not only by express words of reference. but because the offences mentioned in them are declared to be those of accessaries, before and after the fact; and they are, therefore. strictly within the rule accessorius seq-[393]*393uitur, &c. But these reasons do not apply to the clause of the 12th section under consideration. The word "such” is not synonymous with “aforesaid.” and has no necessary reference to the piracies defined by the 8th section of this act. The decision in Palmer’s Case, does not require such a construction;— if it did, we should not hesitate to give it. That ease decides, that the act of piracy must be committed on board of an American vessel; and, upon that principle, we are clear, that confederacy with pirates, on board of a foreign ship, would not be an offence within the 12th section. But in this case, the pilot boat is an American vessel, and the persons on board were citizens of the United States. The pirate, with whom the confederacy and correspondence takes place, may, in our opinion. be any sea robber or pirate, according to the general law of nations. Suppose, for . instance, the captain of an American vessel were to yield up his vessel to such a pirate; could it be contended, that it would not be within the meaning, as it most unquestionably is within the words, of the Sth section of the law? Upon the same ground, it appears to us, that, if a mariner endeavours to corrupt the master of an American vessel to go over to, or to confederate with pirates or sea robbers, whoever they may be. or to trade with them, or furnishing them with ammunition, &c.; or confederating or corresponding with them; are all offences within the words, as well as within the intent and meaning of the 12th section of this law; the word “such'” intending to relate, (though very inaccurately,) to pirates and robbers before mentioned.
The question of fact, which you have to de-cido unde'- this head, is, whether the men on board the schooner were pirates or robbers. according to the definition which we have just given of these words? Of this fact there is no positive proof; and what ground is there for presuming it? They offered the enormous sum of $5000 to be put on shore with five trunks.—They afterwards made an extravagant offer for the defendants’ skiff for the same purpose. In short, their whole conduct was mysterious, and highly suspicious. The defendants themselves thought so. It was such as might free any person from the charge of uncharitableness, who should believe that they had committed, or intended to commit, some crime. But, is the conclusion a necessary one, that that crime was piracy or robbery? We have not the slightest Information as to the history of these men at any time.—who they were—of what nation; —nor do we know the national character of their vessel; although the evidence, so far as it goes, would lead to the conclusion that she was Spanish. They might have acquired the property which they were so anxious to preserve, as well by robbery on land, by capture from Spanish subjects on the high seas, under a commission from the revolutionary government of South America, (which would not amount to acts of piracy,) as by unauthorized robbery on the high seas. The master of this vessel may have run away with the cargo committed to his care, to transport from one place to another, which would be no offence within the 8th section of the act of congress, if the vessel was foreign, nor within the general Jaw. Or, he may merely have intended a breach of the revenue laws of the United States, by smuggling his cargo on shore. Now. if the conduct of these men was equally consistent, whether they had committed any one of the above offences, as the offence of piracy, it -would be carrying the doctrine of presumption to an alarming extent, for the jury to fix upon any particular crime, as that which those persons must have committed; and they ought to be perfectly satisfied, from the evidence, that the crime which these men had committed, (if, indeed, you are satisfied that they had committed any,) was the precise one of piracy or robbery, before they can convict them.
If these men were pirates and robbers, then the next inquiry for the jury to make is, 2. Whether the defendants knew that fact, at the time the alleged correspondence took place. Of this fact there is no proof. The defendants have never acknowledged that they knew, or that they even suspected, that these men %vere pirates; and this prosecution is supported altogether upon their own confessions. They stated, that they considered those persons as being very suspicious characters, which they might well do, without their opinions pointing at any particular crime. The refusal of the defendants to accept the tempting offer of 5000 dollars, to land them with their trunks, and the reason assigned that they might not only expose themselves to prosecution and imprisonment, but to a forfeiture of their vessel;— their prompt information to the officer of the customs, of every circumstance that had occurred; and their claim of the schooner and cargo as derelict, or for salvage, together with the irreproachable character which they are proved to have borne, present a case from which the jury may safely infer, that the defendants rather suspected those persons of an intention to smuggle, than that they had committed the crime charged against them by this prosecution. At all events, the jury ought to be well satisfied, that the de: fendants knew that these persons had been guilty of piracy.
The third inquiry for the jury, in case they should be against the defendants upon the first two points, is, whether they corresponded, &c., with those men? The court is inclined to think, that the different expressions used in the clause of the 12th section, on which this indictment is founded, mean nearly the same thing. They imply compact and association with the pirates, as well in relation to the past, as to future acts. Any intercourse with them, however inefficient or remote, which had a reference to the offence with which they are chargeable, and which [394]*394had a tendency, or was intended, in any manner, to promote their views, is. in the opinion of the court, an offence under this section. There must be something of crimina] intention. in the person who confederates and corresponds with the pirates. The correspondence may be perfectly innocent;—it may be for the purpose of bringing the guilty persons to punishment;—or to dissuade them from a further prosecution of their guilty practices. To convict the defendants, something like a criminal participation must be shown. To exemplify these principles, we think, that if the schooner had followed the pilot boat into Delaware Bay, without any agreement or understanding between the parties, expressed, or implied;—and if the owner of the schooner choosing voluntarily to abandon the schooner and the remainder of her cargo, the defendants had possessed themselves of the property, and proceeded against it for salvage; the defendants would have been exempt from any charge of correspondence. combination, confederacy, or consulting. But they agreed, that the schooner might follow the pilot boat as a guide, and they ratified this agreement by demanding pilotage. They also asked of the alleged pirates, a donation of the vessel and the remainder of the cargo on board, which was acceded to. If the jury are satisfied, that the owners of the schooner and cargo were pirates, and that the defendants knew the fact, we should be of opinion, that these acts would amount to a correspondence and confederacy, within the true intent and meaning of the 12th section of the law under consideration.
The jury found the defendants not guilty.