THIS was an indictment for the murder of Richard Budden,
containing three counts. 1st. Charging the murder to have been
committed on the high seas. 2d. Charging it to have been committed
in the haven of Cape Francois. 3d. Charging the mortal stroke to
have been given on the high seas, and the death to have happened,
on shore, at Cape Francois.
The indictment was founded on the 8th section of the penal law
(1 vol. 102.) which provides 'that if any person, or persons, shall
commit upon the high seas, or in any river, haven, bason, or bay,
out of the jurisdiction of any particular state, murder, &c.
every such offender shall be deemed, taken, and adjudged to be a
pirate and felon, and being thereof convicted, shall suffer
death.'
Upon the evidence it appeared, that the prisoner was mate of the
brig Rover, of which Riachard Budden, the deceased, was master;
that, on the 3d of May 1806, while the brig lay in the harbour of
Cape Francois, the prisoner gave the deceased a mortal stroke, with
a piece of wood; that the deceased, languishing with the wound, was
taken on shore, alive, the next morning; and that he died the day
subsequent to that, on which he was taken on shore.
After a defence on the merits, the prisoner's counsel (Ingersoll
and Joseph Reed) objected, in point of law, that the death, as
Page 4 U.S.
426, 427
well as the mortal blow, were necessary to constitute murder;
and that both the death and the blow must happen on the high seas,
to give jurisdiction to this Court, under the terms of the act of
congress. These positions were elaborately argued; and the
following authorities were cited in support of them. 1 Hale, 425,
6. 4 Co. 42. 6. 2 Hale, 188. 3 Hawk. 188. 333. Plowd. 1 Hale, 427.
Leach C. L. 723. 4 Bl. C. 303. 2 Co. Rep. 93. 2 Inst. 1 Hawk. 187.
East's C. L. 365. 1 Leon. 270. Cro. E. 196. Leach's C. L. 432.
The attorney of the district premised, that he was aware of this
objection to the jurisdiction; but, as there was no judicial
decision upon it, he thought it a duty to bring it before the
Court, for an authoritative opinion; and with that view alone, he
meant to submit all the ideas which he could suggest, in
maintainance of the jurisdiction. He then considered the case, 1st.
On the constitution and laws of the United States, which provide
for the definition and punishment of felonies and murders on the
high seas; Const. art. 1. s. 8. 1 vol. 102. s. 8. which provide for
the locality of the commission of the offence, to vest a federal
jurisdiction; 1 vol. 101. s. 3. 8. which provide for the place and
tribunal of trial; Const. art. 3. s. 2. 1 vol. 67. s. 29. Ib. 102.
s. 8. Ib. 53. s. 9. Ib. 55. s. 11. which provide as to the manner
of trial; Const. art. 3. s. 2. 1 vol. 67. s. 29. and which provide,
generally, that the judicial power of the United States shall
extend to all cases of admiralty and maritime jurisdiction. Thus,
for every crime, whether of common law, or admiralty, jurisdiction,
a common law trial is provided by jury, and a place of venue
prescribed; but two things are to be remarked: 1st. That there is
no definition of the offence of murder (for instance) with a
reference to the common law, any more than to the civil law, which
is the law of the admiralty. 2d. That locality, as to the
commission of a crime, is no further limited, than as it respects
the high seas, or is out of the jurisdiction of any particular
state.
2d. On the law of England. The case would be within the
constable and marshal's jurisdiction, at civil law, if the blow and
death were both in a foreign country; or the blow in a foreign
country, and the death in England: 13 R. c. 2. 2. 3 Inst. 48. 1
Woodes. 139. 4 Bl. C. 268. If the blow was on sea, and the death on
land, neither the common law, nor the admiralty, have jurisdiction;
nor is it a case under the statute of 28 H. 8. 'for the murder was
not committed on the sea;' but the constable and marshal may try
it, by 13 R. 2. Offences committed upon the seas, or in other
haven, river or creek, are triable, by jury, in a county to be
mentioned in a commission, issued under 27 H. 8. c. 4. 28 H. 8. c.
15. The 33 H. 8. c. 23. provides that 'persons, who have been
examined before the king's council upon treasons, murders, &c.
may be tried in any shire to be named
Page 4 U.S.
426, 428
in a commission,' in whatever shire, or place, within the king's
dominions, or without, such offence was committed. The 35 H. 8. c.
2. provides for the trial of treasons, committed out of the realm,
by a jury, in the King's Bench, or before commissioners. The 11
& 12 W. 3. provides for the trial of offences in the colonies.
The 2 G. 2. c. 21. provides for the trial of a murder where the
mortal blow is given on the sea, or out of England, and the death
happens in England; or where the blow is given in England, and the
death happens abroad. Then, the only statute that provides for the
case of the mortal blow and the death both happening abroad, is the
33 H. 8. c. 23., under the modification of a previous examination,
&c. before the king's council: and in England the admiral's
civil law jurisdiction, in criminal cases, is at an end.
3d. On the civil law. The judicial power of the United States,
extending to all cases of admiralty and maritime jurisdiction, ex
vi termini, embraces criminal, as well as civil, cases; and the
civil law, being the law in such cases, it is to be considered,
what the civil law defines to be murder, as to the act and the
place. The intent, not the event, constitutes the crime. Dig. ad
Leg. Corn. l. 14. Dom. 211. The crime is committed, if there be the
will to commit it. Ibid. In France, where the criminal law is
founded on the civil law, if a man strikes another, with intent to
kill him, he is punished with death, though the man is not killed.
1 Denizart. 585. The doctrine of all the cases cited for the
prisoner, which requires the stroke and the death to be in the same
county, or within the same jurisdiction, is an incident to the
common law trial by jury; where the jury of the vicinage are
supposed to know the fact of their own knowledge; but it clearly
has no application, in cases where the jury does not come at all
from the place, where any part of the crime was committed. Cessante
ratione, cessat et ipsa lex. The civil law being considered,
therefore, as the law of the admiralty, remains under the general
delegation of judicial power to the Courts of the United States,
unless it is expressly modified by statute. So far as respects the
definition of murder, it has not been modified; but the
constitution and acts of congress do provide, that all crimes,
wherever committed, shall be tried by jury; and that crimes
committed on the high seas, shall be tried in the district where
the offender is apprehended, or into which he may first be brought.
1 vol. s. 8. p. 102.1 If, indeed, this reasoning fails,
Page 4 U.S.
426, 429
it may be doubted, whether even congress can amend the law, so
as to reach cases, like the one under consideration,
notwithstanding the power 'to define and punish piracies and
felonies committed on the high seas;' Const. art. 1. s. 8. since
the crime of murder (adopting the common law definition) must be
consummate, in the mortal act and consequence, within the
jurisdiction of the United States.
PETERS, Justice.
It is a general rule with me, to abstain from the exercise of
jurisdiction, whenever I doubt my authority to exercise it. On the
present occasion, it is not necessary to give an opinion, whether
the present is a case of admiralty and maritime jurisdiction, upon
the general principles of the admiralty and maritime law; for,
confining myself to the 8th section of the penal act, I find
sufficient to decide, that, at all events, it is not a case within
the jurisdiction of this Court. The Court can only take cognizance
of a murder committed on the high seas; and as murder consists in
both the stroke and the consequent death, both parts of the crime
must happen on the high seas to give jurisdiction; not one part on
the high seas, and another part in a foreign country.
WASHINGTON, Justice.
The point, principally, urged by the prisoner's counsel, is so
clear, that it can receive little elucidation from argument. The
offence, of which we have cognizance, is murder committed on the
high seas. Now, murder is a technical term, of known and settled
meaning; and, when used by the legislature, it imports the same, as
if they had said, that the Court shall have jurisdiction, in a case
of felonious killing upon the high seas. We have no doubt,
therefore, that the death, as well as the mortal stroke, must
happen on the high seas, to constitute a murder there.
But the more important question is, whether the present case,
remains unprovided for, by the laws of the United States? The
judicial act gives jurisdiction to the Circuit Court, of 'all
crimes and offences, cognizable under the authority of the United
States.' 1 vol. 55. s. 11. There are, undoubtedly, in my opinion,
many crimes and offences against the authority of the United
States, which have not been specially defined by law; for, I have
often decided, that the federal Courts have a common law
jurisdiction in criminal cases: and in order to ascertain the
authority of the United States, independent of acts of congress,
against which crimes may be committed, we have been properly
referred to the constitutional provision, that 'the judicial power
shall extend to all cases of admiralty and maritime jurisdiction.'
But still the question recurs, is this a case of admiralty and
maritime jurisdiction, within the meaning of the constitution? The
words of the constitution must be taken to
Page 4 U.S.
426, 430
refer to the admiralty and maritime jurisdiction of England
(from whose code and practice, we derive our systems of
jurisprudence, and, generally speaking, obtain the best glossary)
but no case, no authority, has been produced to show, that in
England such a prosecution would be sustained ( independent of acts
of parliament) as a cause of admiralty and maritime jurisdiction.
Nor, am I disposed to consider the doctrine of the civil law, which
has been mentioned, as furnishing a guide, to escape from the
silence of our own code, as well as of the English code, upon the
subject.
Upon the whole, therefore, I am of opinion, that the present is
a case omitted in the law; and that the indictment cannot be
sustained. It is some relief to my mind, however, that I have no
doubt of the power of congress to provide for such a case. It is
true, that it would be inconsistent with common law notions to call
it murder; but congress, exercising the constitutional power to
define felonies on the high seas, may certainly provide, that a
mortal stroke on the high seas, wherever the death may happen,
shall be adjudged to be a felony.
Upon this charge, the jury immediately acquitted the
prisoner.
Footnotes
Footnote 1 After the death
of capt. Budden, M'Gill had been sent on board the Mediator, an
armed vessel, there put in irons, and carried to Baltimore, from
which place (without any arrest, or process issuing against him) he
voluntarily came to Philadelphia; and surrendered himself for trial
to a magistrate. The attorney of the district suggested, that,
having been first brought into the district of Maryland, his trial
must be there. But, after argument, Judge PETERS, decided, that the
provisions of the act were in the alternative; and that M'Gill,
being first apprehended in Pennsylvania, might be tried, and ought
to be tried, here.
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