A variety of questions have been referred to this Court in these cases, and in the decisions to be certified to the Circuit Court, it will be necessary to notice each question in every case; but in the opinion now to be expressed, the whole may be considered in connexion, as they all depend upon the construction of the same laws.
In the two cases of Smith and Klintock, it has been already adjudged, that the 8th section of the act of 1790 was not repealed by the 5th section of that of 1819, and that the decision in Palmer's case does not apply to the case of a crew, whose conduct
This decision furnishes an answer to all those questions made in the above cases, which are founded on distinctions in the national character of the prisoner, or in that of the vessels, in relation to the piracies committed by the crew of the Louisa. The moment that ship was taken from her officers, and proceeded on a piratical cruize, the crew lost all claim to national character, and whether citizens or foreigners, became equally punishable under the act of 1790. It also furnishes an answer to all the exceptions taken in the case of piracy charged against Furlong. For whatever the Court might have thought on the effect of the act of 1819, he would have been still punishable under the act of 1790. The indictment against him is general, against the form of the statute in such case made and provided, and it matters not that his offence was committed subsequent to passing the act of 1819, since the other act still remains in force, and reaches his case.
It would seem to be unnecessary to go further in the cases against Furlong, as this conclusion decides his fate; but this Court cannot foresee how far it may be necessary to the administration of justice, against accessories or otherwise, that the question in the cases of murder should also be decided.
The question whether murder committed at sea on board a foreign vessel be punishable by the laws of the United States, if committed by a foreigner upon a foreigner, is one which involves a variety of considerations, and which, in the two cases before us, is presented under an obvious distinction; on the one indictment it appears as having been committed simply on board the Anne of Scarborough, a foreign vessel, by a foreigner upon a foreigner; on the other, as committed on board the Anne of Scarborough, from an American vessel by a mariner of the American vessel. It is obvious that neither case comes within the express words of the decision in Palmer's case. And with regard to the case in which the American vessel is brought in view, there can exist but one difficulty.
No difference can be supposed to exist between the case of a murder committed on the seas by means of a gun discharged from a vessel, and by means of a boat's-crew despatched for that purpose, as was actually the case here. And as to the right of the United States to punish all offences committed on or from on board their own vessels, it cannot be doubted, nor has it been doubted that the act of 1790 extends to such offences when committed on the seas. But, we have decided, that in becoming a pirate, the Mary of Mobile, from which the prisoner committed this offence, lost her national character. Could she then be denominated an American vessel?
We are of opinion, that the question is immaterial; for, whether as an American or a pirate ship, the offence committed from her was equally punishable, and the words of the act extend to her in both characters. But if it were necessary to decide the question, we should find no difficulty in maintaining, that no man shall, by crime, put off an incident to his situation which subjects him to punishment. A claim to protection may be forfeited by the loss of national character, where no rights are acquired, or immunity produced by that cause. The other case presents a question of more difficulty. It includes the case of a murder committed by one of a crew upon another, on board a foreign vessel on the high seas. The prisoner is a British subject, the deceased was the same, and the ship also British.
This, though not in all its circumstances the same, is in principle precisely that of the United States v. Palmer. The only difference is, that the case of Palmer supposes the prisoner and the deceased to belong to different vessels, and the certificate of the Court would seem to cover the case of an American as well as a foreigner, who commits an offence on board a foreign vessel.