Prisoner has

Const. Law, 374. The overt act must be proved by two witnesses to have been committed within the district; and the actual or legal presence of the party, or the procurement by him, must be proved by two witnesses. 4 Cranch, 496. 503.

At common law, a prisoner, on the trial of an indictment for a right to be treason or felony, was obliged to manage his defence as well as he defended by could; he was not permitted the aid of counsel; and yet the right counsel-to of being defended by counsel is a right founded and inherent in the panel of jury condition and nature of man. It is a right extending to the minutest -list of wit- particulars of his life. Do we not constantly procure the advice and

nesses, &c.

direction of those we know, or whom we suppose know how to protect our property better than ourselves? We do. In the most trifling controversy of one man with another, he calls in the aid of some one; and when he has confidence in his ability and integrity, is willing in some shape or other to be influenced by his opinion; but in a controversy between a single individual and the community, in which the life of that individual is at stake-a controversy so extremely calculated to put him in a situation of all others most perplexing, and least calculated of affording him the means of defence, that counsel should, at this time, when most needed, be refused, is one of those principles in law which it is easier to palliate than to justify. The common law of England does not allow a prisoner to defend his liberty or life by counsel!

Chitty (1 C. L. 331.) says, it seems to be universally agreed, that at common law, a prisoner was not entitled to defend by counsel, upon the general issue not guilty, on any indictment for treason or felony. This rule may appear somewhat strict and severe, as the crown has always the benefit of counsel to marshal its evidence, and state the case to the jury; but is, in some degree, attempted to be explained by the maxim, that the judge is to be counsel for the prisoner. It is his duty to see that all the proceedings are regular; to examine witnesses for the defendant; to advise him for his benefit; to hear his defence with patience; and, in general, to take care that he is neither irregularly nor unjustly convicted. Whereas, when counsel are allowed a prisoner, it is their business to see that he lose no advantage, and it is then only the duty of the judge to be indifferent between the king and the prisoner; and in prosecutions in which counsel may be allowed, the court will not be of counsel with him. Strange that such a principle should be tolerated in an enlightened and christian community! That the same man should be both counsel and judge in the same cause, is a solecism in jurisprudence, and an insult to common sense.

This hard and unnatural law was altered (for it never obtained in inferior crimes, and collateral points of law) as it respects high treason, by the 7 W. III. c. 3. s. 1., which authorizes and requires the court to assign a prisoner charged with the crime of treason, such counsel, not exceeding two, as they shall themselves require; and the counsel so assigned, shall, at reasonable times, have free access to him. It also gives him a copy of the indictment, which, by the common law, he was not entitled to either in treason or felony. He might, indeed, have it read over to him distinctly, and was then obliged, if ever, to make his exceptions to it. Now, under the sta

tute 7 Ann, c. 21, s. 11, he is entitled to a copy of the indictment ten days before trial; and by this statute he is entitled to a list of the jury and witnesses, mentioning their names, professions, and places of abode. See p. 305.

For the con

of

act of

By an act of congress, 30th April, 1790, "Every person so accused, (of treason,) and indicted for any of the crimes aforesaid, struction shall also be allowed and admitted to make his full defence, by this counsel learned in the law; and the court before whom such person congress, see shall be tried, or some judge thereof, shall, and they are hereby au- p. 304, 305. thorized, and required, immediately upon his request, to assign to 2 Dall. 335 to such person such counsel, not exceeding two, as such person shall 342. desire, to whom such counsel shall have free access at all seasonable hours; and every such person or persons accused or indicted of the crimes aforesaid, shall be allowed and admitted in his said defence to make that he or they can produce, by lawful witness or witnesses, and shall have the like process of the court where he or they shall be tried, to compel his or their witnesses to appear at his or their trial, as is usually granted to compel witnesses to appear on the prosecution against them."

Aid and comfort is explanatory of " adherence." This adherence "Adhering to may be given to subjects or citizens of a foreign prince or state, their enemies, whether war be declared by them or the United States or not. To giving them, give intelligence to enemies; to send provisions to them; to sell aid and comarms to them, treacherously to surrender a fort to them, to cruise in fort." a ship with them against the United States, these are acts of adherence, aid and comfort. To join with rebels in a rebellion, or with enemies in acts of hostility, is treason in a citizen by adhering to those enemies. But if this is done from a well-grounded apprehension of death, and while the party is under actual force, and he takes the first opportunity which offers to make his escape, this fear and compulsion will excuse him. 3 Wils. Lec. 105. 2 Dall. 86. It was decided in the circuit court of the United States, May Term, 1815, Baltimore, that delivering up prisoners and deserters to the enemy, is adhering to them, giving them aid and comfort, and is treason against the United States; and when the act amounts to treason, it involves the intention. (See page 477.)

By an act of congress, 30th April, 1790, sec. 2: "If any person Misprison of or persons having knowledge of the commission of any of the trea- treason. sons aforesaid, shall conceal, and not, as soon as may be, disclose and make known the same to the President of the United States, or some one of the judges thereof, or to the, president or governor of a particular state, or some one of the judges or justices thereof, such person or persons, on conviction, shall be adjudged guilty of misprison of treason, and shall be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars."

By the constitution of the United States, art. 1, sec. 8 and 9: Congress shall have power to define and punish piracies, and felonies, committed on the high seas, and offences against the law of nations."

Piracy.

This provision in the constitution in relation to the definition and punishment of piracy, was ably commented upon by Justice Story. (5 Wheaton, 159.) The power to "define and punish" is more applicable to felonies upon the high seas, (which are, from their nature, somewhat indeterminate, for offences against the law of nations cannot, with any accuracy, be said to be completely ascertained and defined in any public code recognized by the common consent of nations,) than to piracies, which are defined with reasonable certainty by the law of nations. The general practice of nations in punishing all persons, whether natives or foreigners, who have committed this offence against any person whatsoever, with whom they are in amity, is a conclusive proof that the offence is supposed to depend, not upon the particular provisions of any municipal code, but upon the law of nations, both for its definition and punishment. (See page 222.)

The constitution having conferred on congress the power of punishing piracy, there can be no doubt of the right of congress to enact laws punishing pirates, although they may be foreigners, and may have committed no particular offence against the United States. (3 Wheat. 630. Sergt. Const. Law, 321.)

By the act of congress, 30th April, 1790, sec. 8: "If any person or persons shall commit. upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death; or 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 fiity dollars, or yield up such ship or vessel voluntarily to any pirate; or if any scaman shall lay violent hands upon his commander, thereby to hinder and prevent his fighting in defence of his ship, or goods committed to his trust, or shall make a revolt in the ship; every such offender shall be deemed, taken and adjudged to be a pirate and felon, and, being thereof convicted, shall suffer death; and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may first be brought."

There have been a number of decisions under this act of congress. The words " upon the high seas," mean any waters upon the seacoast, which are without the boundaries of low water mark, although such waters may be in a roadstead, or bay, within the jurisdictional limits of a foreign government: these limits, though neutral to war, are not neutral to crimes. 1 Gall. 624. Mason, 147. 5 Wheat. 200, 201. And it is within this act, whether the offence of piratical murder was committed on board of a vessel, or in the sea, as by throwing the deceased into the sea, and drowning him, or by shooting him when in the sea, though he was not thrown overboard. 5 Wheat. 418. And it is within this act, if the offence be committed on board a foreign vessel, by a citizen of the United States; or on board a vessel of the United States by a foreigner; or by a citizen or foreigner on board a piratical vessel; the offence is equally cognizable by the courts of the United States. 5 Wheat. 412, 416. And throwing a person into the sea from on board a vessel having

no national character, is piracy under this act. 5 Wheat. 418. A robbery committed on the high seas, is piracy, under the act of 1790; although such robbery, if committed on land, would not, by the laws of the United States, be punishable with death; and the courts of the United States have jurisdiction of such robbery and piracy. 3 Wheat. 310, 326. And it has also been decided, that a vessel within a marine league of the shore, and at anchor in an open roadstead, where vessels only ride under the shelter of land, at a season when the course of the winds is invariable, is upon the high seas; and a murder on board of such vessel is within the act. 5 Wheat. 204, 205.

In relation to murder, under the above sec. of the act of 30th April, 1790, it has been held, that if the mortal stroke be given in a harbor of a foreign country, and the party stricken languish with the wound, and die on shore of the wound, it is not murder within this act. The death, as well as the mortal stroke, must happen on the high seas, to constitute it murder there. Congress, however, under the power to define and punish felonies on the high seas, may declare that a mortal stroke on the high seas, wherever the death may happen, shall be adjudged felony. Sergt. Const. Law, 332. Du Ponceau's Bynkershock, 127. And murder committed in a harbor, within the territory of a state, is not within the 8th sec. of the act of 30th April, 1790, though committed on board a ship of the line of the United States, by one of the crew upon another. If the constitution, in extending the judicial power to all cases of admiralty and maritime jurisdiction, has granted to congress exclusive power to legislate, yet if they had not legislated, the courts of the United States cannot take cognizance of the case. Whether the courts of common law have concurrent jurisdiction with courts of admiralty over murders committed in bays, which are enclosed parts of the sea, and whether, therefore, the offence is within the jurisdiction of the state, and in whose bay it takes place, is not decided; but if such be the case, congress cannot, it seems, under this clause of the constitution, devest the state courts of jurisdiction in such case, though it might vest a concurrent one in its own courts. Ibid. 3 Wheat. 356.

It has been decided, that robbery and depredation committed by a person upon the high seas, on board any ship or vessel belonging exclusively to subjects of a foreign state, on persons within a vessel belonging exclusively to subjects of a foreign state, is not piracy within the true intent and meaning of this act. Sergt. Const. Law, 323. 3 Wheat. 633, 644. This opinion, however, was afterwards reconsidered, and it was then determined that it applied exclusively to a robbery or murder committed by a person on board of any ship or vessel belonging to subjects of a foreign state; that is, she must be the property of subjects of a foreign state under their control, and ́sailing under the flag of a foreign state, whose authority is acknowledged. For general piracy, murder or robbery, committed in the places described in this section, by persons on board a vessel, not at the time belonging to subjects of any foreign power, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no government whatever, is within the true

Upon what persons.

above act.

meaning of this act, and is punishable in the courts of the United States. Ibid. 5 Wheat. 151, 152. Piracy committed on board of a foreign vessel by a citizen of the United States, or on board of a vessel of the United States by a foreigner, the offender is considered as belonging to the nation under whose flag he sails, and the crime is within the act, and the courts of the United States have jurisdiction. 5 Wheat. 417.

Meaning of The felonious taking the goods of another, from his person, or in the term "rob- his presence, on the high seas, animo furandi, by violence, or putbery" in the ting him in fear, is piracy. Sergt. Const. Law, 323. The term robbery, as mentioned in the act, is the crime of robbery, as mentioned and defined by the common law. 8 Cranch, 610. And although robbery upon land may not be punishable by the laws of the United States with death, yet a robbery upon the high seas is piracy within this act; notwithstanding the act says, "Murder or robbery, or any other offence, which, if committed within the body of a county, would by the laws of the United States be punishable with death, shall be deemed, taken and adjudged to be a pirate."

Piracy under By the 9th sec. of the act of the 30th April, 1790, it is enacted : color of a com- "If any citizen shall commit any piracy or robbery aforesaid, or any mission from act of hostilities against the United States, or any citizen thereof, any foreign upon the high sea, under color of any commission from any foreign prince or

state.

prince or state, or on any pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged and taken to be a pirate, felon and robber, and, on being thereof convicted, shall suffer death."

The object of this section was obviously to make those acts piracy in a citizen, which were not so before, and which would be belligerent when committed on others. 5 Wheat. 201. It may be considered as doubtful whether a citizen taking a commission from a foreign prince or sovereignty, is to be considered within this act on a trial of piracy. 5 Wheat. 201. But there can be no doubt, that when offences of this kind are committed under color of a foreign commission, obtained for.the purpose of covering the crime, they may be punished as if the party had no commission. 5 Wheat. 100. It was decided in the Circuit Court of the United States, New York, Dec. 16th, 1819, before Justice Livingston, that the act of capturing, where one sailed under a forged commission being proved, it was incumbent upon the party to show under what commission he captured. (City-Hall Rec, vol. 4, p. 161.) And that to prove a foreign commission, it is not necessary the witness should have seen him write who issued it; it is sufficient, if it passed at the office as a genuine one. Ibid. And that if a commission in blank was entrusted to one, and afterwards filled up, will be sufficient to exculpate a citizen from a charge of piracy in capturing a foreign vessel. Ibid.

Accessories. By the 10th sec. of the act of 30th April, 1790: " Every person See 3 Wheat. who shall, either upon the land or the seas, knowingly and wittingly 603. aid and assist, procure, command, counsel or advise, any person or persons to do or commit any murder or robbery, or other piracy