| U.S. Circuit Court for the District of Massachusetts | Oct 15, 1812
In order to ascertain the nature of the objections now urged to the court, it will be necessary to state summarily the evidence offered to the jury. On the 9th of January, 1812, the schooner George Washington, mentioned in the indictment, lay in an open roadstead' near the Isle of May, moored with 'two anchors. There were on board $2,500 in Spanish dollars, and fourteen casks of Teneriffe wine. Samuel Tully was mate, and John''Dalton was a mariner belonging to the schooner. It appeared from the testimony, that in the afternoon, the captain being on shore, the cables of both anchors were cut off on the windlass. That the mate and Dalton were on board at the time, and gave no explanation. That the vessel was got under weigh by order of the mate; and two of the seamen, having a suspicion of the nature of the intended transaction, refused to go out with the vessel, and were suffered to quit her in a boat. That immediately afterwards, the mate directed the schooner to sea, four persons only being on board, and the next day steered a course apparently for the West Indies. At the time of departure the weather was mild and moderate, and there was no evidence offered to show any pretence for the departure. About eighteen or twenty days after the departure, one of the seamen on board was, about midnight, killed and thrown overboard by the mate and Dalton. The next day land was discovered, which proved to be St Lucia in the West Indies. The schooner was then scuttled by the mate and Dalton, by boring holes in her bottom with an auger, and was then deserted and left in a sinking condition. The mate and Dalton, and the cook, (who was a principal witness at the trial) took to the boat, the money, and some wine and bread having been previously put into it. They stood out to sea that night, and in the afternoon of the next day they arrived at St. Lucia. The mate and Dalton agreed that a fictitious story should be told, that the schooner struck on a wreck, and foundered at sea; and the cook was directed to tell the same story. The mate divided the money, giving Dalton a large bag of it, the cook a small bag, and keeping a third large bag for himself. The fictitious story was told on landing, and finally, in about a fortnight or three weeks, the cook, from distress of mind and contrition at the offence, voluntarily disclosed the whole transaction. The testimony of the cook was, in all the circumstances in which from the nature of the case it was capable of corroboration, fully corroborated by the testimony of the captain. I omit many interesting incidents and striking facts,, because I wish to present only an outline of the case.
At the trial, the court directed the jury W the following effect: That, at the common, law, the offence of piracy consisted in committing those acts of robbery and depredation upon the high seas, which, if committed, on land, would have amounted to felony there. 2 East, P. C. 796; 4 Bl. Comm. 72. That it was not necessary by the common law, that the offence should be committed, with all the facts necessary to constitute the technical crime of robbery. That robbery could be committed only by force and violence to the person, or by putting in fear. 2 East, P. C. 708. But any felonious taking or carrying away of a ship, and the property on board thereof, which, if done on land, would have amounted to felony, if done at sea, although there were no violence used, to the person of the owner or master, and no putting in fear, would, in point of law, be piracy. That the present was however' a statute offence, to be decided by the at-, tentive consideration of the terms, by which it was created, and not otherwise connected with the common law, than as the latter' might illustrate or fix the true construction.. The statute declares, that “if any captain or mariner of any ship or other vessel shall, piratically and feloniously run away with such ship or vessel, or any goods or merchandize to the value of fifty dollars, &c.. every such offender shall be deemed, taken and adjudged to be a pirate and a felon, and being thereof convicted, shall suffer death.” That the only facts necessary to constitute the crime were those prescribed in. the statute, viz. that the vessel should be run away with by a captain or mariner of the-vessel, and that it should be done piratically and feloniously. That the statute does not in terms require, that there should be any personal violence or putting in fear; and iff the captain and crew were all to confederate- and run away with the ship, with a piratical and felonious intent, there could be no doubt that if would be within the statute; yet in. such a case there could be no pretence of personal violence or terror. The same might be stated as to a vessel run away with by one of the crew, where no other person was on board. That the terms “piratically and feloniously” did not imply necessarily personal force or violence. That if a theft were committed secretly or without violence, it might amount to felony, and if so, then if'
AVith this opinion the counsel for the prisoners were dissatisfied, and they have moved for a new trial, upon exceptions filed before us. I have rather stated at large our directions at the trial, because, although the exceptions may be virtually included in our opinion, yet the whole should be connected together, in order to form a deliberate judgment of its legal propriety. After much reflection on the subject, and the examination of authorities, I remain of the same opinion that I expressed at the trial. If I felt any doubt, I should be anxious to have the opinion of another tribunal; but having none, I must give my voice for over-ruling the exceptions.
A pirate is one, says Hawkins, who, to enrich himself, either by surprise or force, sets upon merchants or other traders, by sea, to spoil them of their goods: this description, as is observed by a respectable writer of our own country, is applicable merely to piracy by the law of nations. Piracy, by the common law, consists in committing those acts of robbery and depredation upon the high seas, which, if committed on shore, would amount to felony there. The description of the offence in the first part of the 8th section of our statute, is analogous to the common law description; but the statute proceeds, in correspondence with the statute of 11 and 12 AVm. III., to make certain other acts piracy, which would not be so at common law; and among the rest, an atrocious breach of trust by any captain or mariner of any ship or vessel, in running away with such ship or vessel, or any goods or merchandize to the value of fifty dollars. To constitute this offence, the act must be done, as the statute expresses it. piratically and feloniously.' Unlawful depredation, says a respectable writer of the civil law, is of the essence of piracy; and this I apprehend is true, relative to piracy thus created by statute, as well as to piracies by common law. The animus depredandi, as it is expressed by Molloy, is to be determined by the jury, from facts and circumstances given in evidence, and is comprehended in the term “feloniously,” which refers to the mind, will or intention. If the jury find the act of running away with the ship or vessel and goods to be done feloniously, they find it to be done without any justification or excuse; they find it to be done wilfully and fraudulently, animo furandi lucri causa; and having been committed with the other qualities and incidents mentioned in the statute, i. e. at sea by persons bearing the relation to the ship of captain or mariners, and the property plundered amounting to fifty dollars—such felonious act is, in contemplation of the statute, piratical. Thus the jury were instructed, and after the serious deliberation which the nature and magnitude of the case necessarily impose, I do not think the direction erroneous.
In regard to the second objection, if force were necessary to be proved in order to constitute piracy, there was sufficient evidence in the case of a forcible taking of the property in question; nor can it be contended, I think, from the evidence, that no person was put in fear. But it is said that no evidence was offered to show that any force or violence were exercised on Levy, the master, in whose care, custody and possession the vessel and goods were alleged to be, or that he was put in fear. This objection is grounded on an analogy to robbery on land; an analogy too strictly pursued in the argument on this head. Even at common law, piracy might be committed without the characteristics which this objection considers as essential. If a ship shall ride at anchor, says Molloy, and the mariners shall be part in their ship’s boat, and the rest on shore, and none shall be in the ship; yet if a pirate shall attack and rob her, the same is piracy. And on this statute there can be no question, as appears to me, that actual force on the master, or other person in possession, is not necessary to constitute the offence. The statute had in view the prevention of atrocious violation of trust, by persons standing in particular relations to the ship. Officers and mariners may combine feloni-ously to run away with the ship and cargo without any person being put in fear, in the sense considered in the objection, and yet it would be clearly a piratical act, within the true intent and meaning of the statute.
It is not necessary now to consider whether a new trial could properly be directed by the court, if the objections, or either of them, were well founded. Being persuaded that the jury were not misdirected in matter of law, and that the indictment is legally maintainable without proof of actual force or violence on the master or others, or
Motion over-ruled.
At a subsequent day the sentence of death was pronounced by STORY, Circuit Justice. Tully was afterwards executed; but Dalton, appearing penitent, and it being supposed that he was in a great degree under the influence and authority of the mate, at the intercession of several gentlemen, was, after frequent reprieves, pardoned by the president of the United States.