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The London
Packet.

of the London Packet's first weighing anchor at Bu- 1820. enos Ayres, and that she may for some reason or other have been detained in the river until the 10th of July, which is the date of Merino's first letter to his correspondent in London. It may be added, that it is not easy to believe, that if a fraud were intended, care would not have been taken to make the letter of advice, and all the other papers, correspond with the time of the departure of the vessel.

Restitution, with costs and paid by the claimant.

Upon the whole, a majority of the judges are of opinion, that upon the farther proof the sentence of expenses to be the Circuit Court should be reversed, and the property restored to the claimant. But as the captors have been put to great expense in consequence of the imperfect documents found on board, and the great delay which has attended the production of the farther proof, they are of opinion that their costs and expenses must be paid by the claimant.

Decree reversed.

DECREE. This cause came on to be heard on the transcript of the record of the Circuit Court of the United States for the District of Massachusetts, and the farther proof exhibited in this cause, and was argued by counsel. On consideration whereof, it is DECREED and ORDERED, that the Decree of the Circuit Court for the District of Massachusetts in this case, condemning six thousand two hundred and seventy-six ox hides, as good and lawful prize to the libellants, be and the same is hereby reversed and annulled. And this Court, proceeding to pass such

1820.

U. States v.

Klintock.

Decree as the said Circuit Court should have passed, it is further DeCreed and OrdeRED, that the said six thousand two hundred and seventy-six ox hides, be restored to the claimant: And it is further DECREED, that the said Claimant pay to the Libellants the costs and expenses incurred in the prosecution of this suit.

*

The UNITED STATES V. KLINTOCK.

A commission issued by Aury, as "Brigadier of the Mexican republic," (a republic whose existence is unknown and unacknowledged,) or as "Generalissimo of the Floridas," (a province in the possession of Spain,) will not authorize armed vessels to make captures at sea. Quære-Whether a person acting with good faith under such a commission may be guilty of piracy?

However this may be, in general; under the particular circumstances of this case, showing that the seizure was made, not jure belli, but animo furandi, the commission was held not to exempt the prisoner from the charge of piracy.

The act of the 30th of April, 1790, c. 36. s. 8. extends to all persons, on board all vessels, which throw off their national character by cruizing piratically, and committing piracy on other vessels.

THIS was an indictment in the Circuit Court of Virginia, against Ralph Klintock, a citizen of the United States, charging him with a piracy committed on the high seas, in April, 1818, on a vessel called the Norberg, belonging to persons to the jurors unknown. He was found guilty generally.

The facts stated were, that the prisoner is a citizen of the United States; that the vessel in which he sailed as first lieutenant was called the Young

1820.

v.

Klintock.

Spartan; was owned without the United States, and cruized under a commission from Aury, styling U. States himself Brigadier of the Mexican Republic and Generalissimo of the Floridas, granted at Fernandina, after the United States' government took possession of it. That he was convicted of a piracy, committed on the Norberg, a Danish vessel, in consequence of practising the following fraud upon her. The second officer of the privateer brought on board some Spanish papers, which he concealed in a locker, and then affected to have found them on board. The vessel was then taken possession of, the whole original ship's company left on an island on the coast of Cuba, and the second officer being put in command, took the name of the original captain, sailed for Savannah, and entered her there, personating the Danish captain and crew. The Young Spartan followed, and put into a port in the vicinity.

The counsel for the prisoner moved, that the judgment be arrested on the following grounds:

First, That Aury's commission exempts the prisoner from the charge of piracy.

Second, That the fraud practised on the Dane does not support the charge of piracy, as an act piratically done, and not in the exercise of belligerent rights.

Third, That the prisoner is not punishable under the provisions of the 8th section of the act of 1790.

a Which provides, "That if any person or persons shall commit, upon the high seas, or in any river, haven, basin, or

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1820.

U. States v.

Klintock.

Feb.14th.

Fourth, That the act of the 30th of April, 1790, 8th section, "entitled an act for the punishment of certain crimes against the United States," does not extend to an American citizen entering on board of a foreign vessel, committing piracy upon a vessel exclusively owned by foreigners.

Upon these errors in arrest of judgment, the judges of the Circuit Court were divided in opinion, and directed the points, with their division thereon, to be certified to this Court.

The Attorney General, for the United States, argued, 1. That although the government and Courts of the United States had acknowledged the fact of the existence of the new States in Spanish America, so as to legitimate the war between them and the pa

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 fifty dollars, or yield up such ship or vessel voluntarily to any pirate; or if any seaman 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 be may be first brought."

rent country, yet Mexico was not among the provinces in actual revolt, nor was any such State de facto, known to exist as the Mexican republic, under the authority of which the commission in question was issued. And even if there were such a power in existence exercising all the rights of war, Denmark is not at war with it, or with any other of the Spanish American provinces. 2. Although the fraud practised on the Dane, may not be in itself an act of piracy, yet the seizure was a piratical act, and the ingredient of fraud cannot change its character for the better. 3. Neither is the prisoner protected by the decision of this Court in the case of the United States v. Palmer. That case merely decides, that the crime of robbery committed on board a ship belonging to subjects of a foreign power, by a foreigner, is not piracy, within the act of the 30th of April, 1790, c. 36. s. 8. But it does not decide, that the same offence, committed by a citizen, on board of a vessel not belonging to the subjects of any foreign power, is not piracy. The vessel on board of which the crime was committed, does not belong to any particular nation. A pirate, being hostis humani generis, is of no nation or State. He, and his confederates, and the vessel on board of which they sail, are outcasts from the society of nations. All the States of the world are engaged in a tacit alliance against them. An offence committed by them against

a The Divina Pastora, 4 Wheat. 52.65. note a, and the cases there collected. The Estrella, Ib. 298. The Neustra Senora de la Caridad, Ib. 497.

b 3 Wheat. 610. 630.

1820.

U. States v.

Klintock.

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