THIS was a prosecution, on the 2d section of the act of
congress, of the 26th of March 1804, (7 vol. 126.) which is
expressed in these words: ' Be it further enacted, That if any
person shall, on the high seas, wilfully and corruptly cast away,
burn, or otherwise destroy, any ship or vessel of which he is
owner, in part or in whole, or in anywise direct or procure the
same to be done, with intent or design to prejudice any person or
persons that hath underwritten, or shall underwrite, any policy or
policies of insurance thereon, or if any merchant or merchants that
shall load goods thereon, or of any other owner or owners of such
ship or vessel, the person or persons offending therein, being
thereof lawfully convicted, shall be deemed and adjudged guilty of
felony, and shall suffer death.' [
Footnote 1]
In the course of the prosecution and trial, the following points
occurred.
I. The defendant was brought, by habeas corpus, before the
Court, holding an adjourned session, on the 8th of January 1806,
when it appeared that, on the 27th of December 1805, he
Page 4 U.S.
412, 413
had been committed by the mayor of the city of Philadelphia,
'charged on the oath of Andrew Clarke with having on the 20th day
of August last, or thereabouts, on the high seas, scuttled the
schooner Enterprize of Baltimore, with intention to defraud the
underwriters, as he believes.' The prisoner's counsel objected,
1st. That the commitment was vague, and did not describe the
offence, within the words of the act of Congress. 2d. That the
offence was not committed within the district of Pennsylvania; and
no demand having been made for his surrencer by the executive of
any other state, there was no law to warrant his arrest, or
detention. 3d. That the evidence was not sufficiently strong, to
found an indictment against him and he was entitled, at all events,
to be discharged on bail. It was answered, by the attorney of the
district, 1st. That whatever might be the formal defects of the
original commitment, the Court, being now satisfied with the
evidence, would remand the prisoner for trial. 2d. That it was not
necessary, for that purpose, to give positive proof of guilt; but
so show probable cause for the accusation. 3d. That the case did
not come, at all, under the constitutional, or legislative,
provisions, for the surrender of a fugitive from the justice of
another state; but it was the case of a crime against the United
States, committed on the high seas; when the trial is directed to
be in the district, where the offender is apprehended. 1 vol.
103.s. 8. 1 vol. 72, 3. s. 33.
By the COURT: Upon a habeas corpus, we are only to inquire,
whether the warrant of commitment states a sufficient probable
cause to believe, that the person charged, has committed the
offence stated. We have heard the evidence; and cannot doubt of its
sufficiency to that extent. We do not think, that the prisoner
ought either to be discharged, or bailed. He must be remanded for
trial. II. When the panel of jurors was called over, the prisoner's
counsel claimed the right to challenging thirty-five jorors
peremptorily, as the offence, charged in the indictment, had been
created, since the act of the 30th of April 1790 (1 vol. 113. s.
30.) and the right of challenge remained as at common law. 4 Hawk.
389. 4 Bl. C. ___. The clause, respecting challenges is in these
words: 'If any person, or persons be indicted of treason against
the United States, and shall stand mute, or refuse to plead, or
shall challenge peremptorily above the number of thirty-five of the
jury; or if any other person, or persons, be indicted of anyother
of the offences hereinbefore set forth, for which the punishment is
declared to be death, if he or they shall so stand mute, or will
not answer to the indictment, or challenge peremptorily above the
number of twenty persons of the jury; the Court, in any of the
cases aforesaid, shall notwithstanding proceed to the
Page 4 U.S.
412, 414
trial of the person or persons so standing mute, or challenging,
as if he or they had pleaded not guilty, and render judgment
thereon accordingly.' The attorney of the district, said he was
indifferent which way the Court decided the point; but it was
proper to remark, that the 29th section of the judicial act
referred, generally, to the state law, for the rule relating to
juries; (1 vol. 67.) that the state law limited the right of
peremptory challenge, in cases like the present, to the number of
twenty; that the 30th section of the penal act (1 vol. 113.)
obviously considers the whole law of peremptory challenge provided
for, in future, as well as existing, capital cases; and that it was
improper to refer to a common law rule, if a rule was prescribed by
statute.
PETERS, Justice. The words of the penal act, when they restrain
the common law right of peremptory challenge, also expressly
confine the operation of the restraint, to the offences before set
forth in the act. For offences not set forth in the act, the only
rule is furnished by the common law; and it is the privilege of the
prisoner, that it should be applied and enforced.
WASHINGTON, Justice. The right of challenge was a privilege
highly esteemed, and anxiously guarged, at the common law; and it
cannot be doubted, but that at the common law, a prisoner is
entitled, on a capital charge, to challenge peremptorily,
thirty-five of the jurors. If, therefore, the act of congress has
substituted no other rule (and, in the present instance, it is
clear that none has been substituted) the common law rule must be
pursued. It is not easy, indeed, to assign a reason, for
introducing the words, that confine the provision, respecting
peremptory challenges, to offences before set forth in the act; but
it is enough to bind our judgments, that the words are actually
introduced. [
Footnote 2] III.
The indictment contained four counts: 1st Count. That the prisoner
being owner, in whole, of a certain ship, or vessel called the
Enterprize of Baltimore, 'the Baltimore Insurance Company, by their
president, and under their corporate seal attested by their
secretary did subscribe and underwrite a certain policy of
insurance upon the said ship, or vessel, called the Enterprize in
the sum of 2700 dollars upon a certain voyage &c. And the said
Richard Johns well knowing the premises with intent and design
wilfully, corruptly, unlawfully and feloniously to prejudice the
said Baltimore Insurance Company &c. and by means
Page 4 U.S.
412, 415
of the aforesaid insurance unjustly to acquire to himself
unlawful and corrupt gain and advantage on the &c. with force
and arms on the high seas & c. wilfully corruptly unlawfully
and feloniously did cast away and destroy the said ship or vessel
called the Enterprize in and upon the voyage in the said policy of
insurance mentioned &c. to the great damage of the said
Baltimore Insurance Company, against the form of the act of the
congress of the United States &c.' 2d Count. That he committed
the felony, by feloniously boring auger holes through the bottom of
the vessel. 3d Count. That he feloniously directed and procured the
vessel to be cast away and destroyed. 4th Count. That he
feloniously directed and procured the vessel to be cast away and
destroyed, by feloniously boring auger holes through the bottom of
the vessel.
1st. The president of the Baltimore Insurance Company was
offered as a witness, to prove the order for insurance, and the
subscription to the policy. The prisoner's counsel objected to his
competency; and cited 1 P. Wms. 595. 1 M'Nall. 52, 3. But the
objection was over-ruled.
2d. A copy of the manifest of the outward cargo of the
Experiment, certified under the hands and seal of the custom-house
officers of Baltimore, was offered in evidence, after proof by the
witness, that he had himself compared it with the record. The
prisoner's counsel objected, that there was no evidence, that the
original manifest was subscribed by the prisoner, or even delivered
by him. The district attorney answered, that by the 21st section of
the impost law (4 vol. 311, 312.) it was made the duty of the
collector of the port, 'to record, in books to be kept for that
purpose, all manifests;' and that, being a record, the proof
offered was unexceptionable.
By the COURT:
In that point of view, the evidence is clearly admissible.
3d. The policy of insurance, under the corporate seal of the
company, signed by the president and attested by the secretary, was
offered in evidence. The prisoner's counsel objected, that the
charter of incorporation must be produced, before any corporate
act, or instrument, could be given in evidence. The attorney of the
district opposed the objection, on account of the difficulty, which
the precedent would create in future prosecutions: but the COURT
deeming it necessary to establish the corporate capacity of the
Insurance Company, he read the acts of the legislature of Maryland
on that subject, from the statute book, published by authority; and
these being limited in their duration, he offered an
exemplification of a recent act, protracting the existence of the
corporation at, and beyond, the time of subscribing the policy
in
Page 4 U.S.
412, 416
question. The exemplification, however, was under the great seal
of Maryland, but was not attested by the governor, or any other
principal officer, of the state. The prisoner's counsel objected to
the want of such attestation; but the objection was overruled.
By the COURT:
The act of congress declares, 'that the acts of the legislatures
of the several states shall be authenticated, by having the seal of
their respective states affixed thereto.' 1 vol. 115. It does not
require the attestation of any public officer in this case;
although in all the cases afterwards provided for, such an
attestation is required. There is a good reason for the
distinction. The seal is in itself, the highest test of
authenticity; and leaving the evidence upon that alone, precludes
all controversy, as to the officer entitled to affix the seal,
which is a regulation very different in the different states.
4th. On the evidence in the cause, various grounds of defence
were adopted by the prisoner's counsel, Lewis, Rawle, S. Levy, S.
Ewing, and C. Ingersoll, and controverted by Dallas, attorney of
the district, of which the principal were these: 1st. That the
second section of the act of congress does not expressly authorise
an indictment against an American citizen; and it would be an
usurpation of legislative power, to extend its operation to aliens,
committing offences on the high seas. 2d. That the act does not
expressly embrace the case of an insurance by a corporation; and a
corporation is not included in the description of persons. 3d. That
the indictment describes the Experiment to be a ship or vessel,
which is not sufficiently specific. 4th. That in fact, and in law,
the vessel was not case away and destroyed. 5th. That if the vessel
were feloniously destroyed, the evidence does not prove the
prisoner to be the felon. [
Footnote
3]
The COURT, in the charge to the jury, having reviewed and
commented upon the facts, observed, that the objections, in point
of law, would appear on the record, and might be taken advantage
of, upon a motion in arrest of judgment. On the law, therefore, the
COURT avoided giving any opinion at present, except in relation to
the question,-what constituted the destruction of a ship, or
vessel, within the meaning of the act of congress? On this
question, they had deliberated much; and, as the result, reduced to
writing an opinion, which they delivered, in charge to
Page 4 U.S.
412, 417
the jury, in these words: 'To destroy a vessel, is to unfit her
for service, beyond the hopes of recovery, by ordinary means. This,
in extent of injury, is synonymous with cast away. It is the
generical term: casting away is a species of destroying, as burning
is. Both mean such an act, as causes a vessel to perish, or be
lost, so as to be irrecoverable by ordinary means.'
The defendant was acquitted, owing, it is believed, to a doubt,
whether he had bored himself, or directed any other person to bore,
the auger holes in the bottom of the vessel; which was a new
vessel, picked up at sea, after she was abandoned, carried into St.
Jago de Cuba, and there ( the holes being discovered) soon
repaired, and fitted again for sea.
Footnotes
Footnote 1 The second member
of the section is so inaccurately expressed, that the attorney of
the district thought, at first, there must have been some error of
the press; but the seeretary of state informed him, that the
printed copy was found, upon a comparison, to agree exactly with
the roll. See the analogous English statutes, 4 Geo. 1. c. 12. s.
3. 11 Geo. 1. c. 29.
Footnote 2 In the case of
the United States v. Russel, on an indictment for murder on the
high seas, tried at October term 1806, the prisoner's counsel, at
first, claimed the right of peremptorily challenging thirty- five
jurors; but, that being an offence set forth in the penal law, was
expressly embraced by the provision limiting the peremptory
challenges to twenty; and the claim was, accordingly,
over-ruled.
Footnote 3 In the course of
the defence, the following authorities were cited: 2 East, P. C.
1097, 8. Johnson's Dict. 'Cast-away.' 8 Mod. 67. ca. 48. Ib. 74.
ca. 52. 4 Hawk. 67. 62. 2 Burr. 1037. Plowd. 177. 1 Leach, 215. Rex
v. Harrison. 2 Stra. 1241. 8 Mod. 66. 1 Hale, 635. 2 Hale, 389. 3
Inst. 202. 4 Bl. C. 881. Leach, 109. Com. Interp. 2 Hawk. c. 25.s.
58, 59. Ib. c. 23. s. 82. 2 Rol. Abr. 30. 5 Mod. 137, 8. The
attorney of the district cited 1 Leach, 215. 1 Bl. C. 467. 2 Inst.
702. 1 Woodes. 195.
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