to attempt to commit and perpetrate with him the said E. R. the detestable, horrid, and abominable crime aforesaid, against, etc.(u) (Conclude as in book 1, chapter 3.)

(u) It was held in R. v. Ransford, 13 Cox C. C. 9, that this count charged an indictable misdemeanor.

The evidence was that O. was a boy at school, and that he had received two other letters from the prisoner, which he read, but that when he received the one mentioned in the above count he did not read it, nor was he in any way aware of its contents, but handed it over to the school authorities. It was ruled that the sending the letter proved the attempt to incite, although it might be doubtful whether it could be said to amount to inciting or soliciting, inasmuch as O. was not aware of its contents.

Pollock, B.--I am clearly of opinion that the seventh count is good. In Schofield's case (Cald. 397), Lord Mansfield, C. J., says: "So long as an act rests on bare intention, it is not punishable, but immediately when an act is done, the law judges not only of the act done, but the intent with which it is done, and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable." Was, then, the third letter, with its inclosure, an act done with a criminal intent? I think that the sending of it to the boy with a criminal intent was a criminal act done, though the letter was not seen by the boy, within the above dictum of Lord Mansfield. See Wh. Cr. L. 8th ed. § 172. That a solicitation to commit adultery is not indictable, see Ibid. 607

CHAPTER XIII.

REVOLT, PIRACY, AND VIOLATION OF THE LAWS

CONCERNING THE SLAVE-TRADE. (a)

(1061) Making a revolt.

(1062) Endeavoring to make a revolt.

(1063) Same, setting out the "endeavor" to consist in a conspiracy, etc. (1064) Setting out the endeavor to consist in a solicitation of others to neg

lect their duty, etc.

(1065) Setting out the endeavor to consist in an assemblage of the crew in a riotous manner, etc.

(1066) Laying the time with a continuando.

(1067) Piracy, at common law.

(1068) Riot on board ship.

(1069) Confining the master, etc.

(1070) Piratically and feloniously running away with a vessel, and aiding and abetting therein, etc., and assaulting master.

First count, running away with vessel.

(1071) Running away with goods, etc.

(1072) Same, stated more specially.

(1073) Assaulting master and running away with goods, etc.

(1074) Against principal offender for running away with vessel.

(1075) Against others as accessories.

(1076) Breaking and boarding a ship, assaulting, etc., the crew, and stealing, etc., the cargo.

(1077) Piratically breaking into, taking, and carrying away a ship and certain goods on board the same.

(1078) Against a seaman for laying violent hands upon his commander, with intent to prevent his fighting in defence of his ship.

(1079) Attempting to corrupt a seaman to turn marauder, and to run away with a ship.

(1080) Against an accessary to a piracy before the fact.

(1081) Against an accessary to a piracy after the fact.

(1082) Fitting, equipping, and preparing, and being concerned in fitting, etc., vessels for the slave-trade in ports of the United States, as master or owner, under the Act of 20th April, 1818, §§ 2, 3. (1083) Same, but leaving out allegation that offence was after the act, and averring defendant caused the vessel to sail.

(a) See Wh. Cr. L. 8th ed. § 1876.

(1084) Preparing the vessel, etc.

(1085) Aiding and abetting in preparing, etc.

(1086) Serving on board of a vessel engaged in the slave-trade, under act of 10th May, 1800, §§ 2, 3. First count, the vessel being American.

(1091) Forcibly confining and detaining negroes taken from the coast of Africa, with intention of making slaves of them, and for aiding and abetting, under act of 15th May, 1820, § 5.

(1092) Against a part of defendants as principals and the others as accessaries.

(1093) Taking on board and receiving from the coast of Africa, negroes, etc., under the act of 20th April, 1818, § 4.

(1094) Forcibly bringing and carrying away negroes from the coast of Africa, for the purpose of making slaves of them, under act of 15th May, 1820, § 4.

(1061) Making a revolt.

That H. G. et al., all late, etc., on, etc., in and on board of a certain American ship and vessel called the "Hibernia," then lying within the jurisdiction of a foreign state and sovereign, to wit, at, etc., the same then and there being an American ship and vessel, belonging to certain persons, citizens of the United States, whose names are to the jurors aforesaid as yet unknown, and which ship or vessel one A. B. was then and there master, with force and arms, did make a revolt, etc. (by unlawfully, wilfully, and with force usurping the command of such ship and vessel from the said the master thereof, or, by unlawfully, wilfully, and with force depriving the said the master thereof, of his authority and command on board of the said vessel, etc.),(b) they, the said H. G. et al., then and there being

(b) One of the segments of the passage in brackets, or an averment of a similar character under the act, is made necessary by the decision of Judge Kane, in the case of U. S. v. Almeida, Dist. Ct. U. S., Phil., Feb. 1847. (Wh. Cr. L. 8th ed. §1880.) "The indictment," he said, "on which these prisoners were convicted a few days ago, charges that on the first day of November last, upon the high seas, etc., they, being seamen of an American vessel, to wit, the barque "Pons," with force and arms, did then and there feloniously make a revolt on board the said ship, contrary,' etc.

66

"A motion has been made in arrest of judgment, on the ground that the offence is not set forth in the indictment with adequate certainty; and it has VOL. II.-39 609

the crew of the said ship and vessel, against, etc., and contrary,

been contended that, under the acts of congress now in force, it was incumbent on the prosecution to set out more specifically the acts which make up the offence charged.

"The question presented by the record is more interesting than difficult; but as it appears to be of the first impression, it properly invites an exposition of the views of the court in deciding it.

"The law secures to every man who is brought to trial on a charge of crime, that the acts which constitute his alleged guilt shall be set forth with reasonable certainty in the indictment which he is called upon to plead to. This is his personal right-indispensable, to enable him to traverse the facts, if he believe them to be untruly charged; to deny their asserted legal bearing, if in his judgment they do not establish the crime imputed to him; or to admit at once the facts and the conclusions from them, if he be conscious of guilt. It is important to his protection also, in case he should be a second time charged for the same offence, that there should be no uncertainty as to that for which he was tried before. And besides all this, which may be supposed to regard the accused alone, it is necessary for the proper action and justification of the court, that it should clearly appear from facts patent on the record, that a specific, legally defined crime has been committed, for which sentence is to be awarded according to the laws that apply to it.

There are exceptions, or rather limits, to the application of this principle ; but they all refer themselves to the peculiar character of the offence charged. Thus, an indictment against a common barrator,' or for keeping a common gaming-house,' or a house of ill-fame,' is good without a specification of acts; for the essence of the offence in these cases is habitual character. So also, where the charge is not the absolute perpetration of an offence, but its primary characteristic lies in the intent, instigation, or motion of the party towards its perpetration; the acts of the accused, important only as developing the mala mens, and not constituting of themselves the crime, need not be spread upon the record. Such are certain cases of conspiracy, and those of attempt or solicitation, to commit a known crime; where the mental purpose may not have been matured into effective action, or has had reference to criminal action by a third party—a class of exceptions, this last, which vindicates much of the judicial action under this

statute.

"But these are only exceptions: the principle is as broad as the common law. It is not enough, and never has been, to charge against a party a mere legal conclusion, as justly inferential from the facts that are not themselves disclosed on the record. You may not charge treason, murder, or piracy, in round general phrases. You must set out the act which constitutes it in the particular case.

"Following out the principle, it has always been held that where various acts have been enumerated in a statute, as included in the same category of crime, and to be punished alike, it is not enough to charge the violation of such a statute in disjunctive or alternative terms. That is to say, you must not charge its violation to have been in this or that or another particular, leaving the defendant uncertain which or how many of the enumerated particulars he is to answer to. He is entitled to precise notice of the accusation against him.

"All these are long recognized rules of the criminal law, framed for the protection of innocence, and not unfrequently essential to its safety. The court has no right to disregard them, even if it would; on the contrary, it is called upon by the highest duty that man can owe his fellow, to see to it that they lose none of that efficiency for good which is due to the uniformity and certainty of their ap plication. The defendants have asserted of record, that in their case these rules of pleading have not been conformed to, that they have not had such notice of the offence charged against them as the law requires, and that there is not now within the judicial knowledge of the court that precise and specific assurance of

etc.

(Conclude as in book 1, chapter 3, and see 17, 18, 181, n.,

239, n.)

(Add count for endeavoring to commit revolt as in next form.(c)

their guilt, which can warrant us in pronouncing sentence upon this verdict. If it be so, they are not too late in bringing the fact to our notice.

"The indictment, it is understood, is in accordance with the precedents under the crimes' act of 1790. By the 8th section of that act it was enacted, that if any seaman shall lay violent hands on his commander, thereby to hinder him from defending his ship, or the goods committed to his trust, or shall make a revolt in the ship,' he shall be adjudged to be a pirate and a felon; and by the 12th section it was enacted, that if any seaman shall confine the master of any ship or vessel, or endeavor to make a revolt' in such ship, he shall on conviction suffer imprisonment and fine.

"Almost all the indictments that have been framed under this act for offences similar to the present, have charged the offence in the words of the 12th section, for endeavoring to made a revolt.' U. S. v. Bladen, 1 P. C. C. R. 213; U. S. v. Smith, 3 W. Ĉ. C. R. 78 ; U. S. v. Smith and Combs, 3 W. C. C. R. 526 ; U. S. v. Kelly, 4 W. C. C. R. 528; U. S. v. Smith, 1 Mas. 147; U. S. v. Hamilton, 1 Mas. 443; U. S. v. Keefe, 3 Mas. 457; U. S. v. Hemmer, 4 Mas. 105; U. S. v. Haines, 5 Mas. 272; U. S. v. Gardner, 5 Mas. 402; U. S. v. Barker, 5 Mas. 404; U. S. v. Savage, 5 Mas. 460; U. S. e. Thompson, 1 Sumn. 168; U. S. v. Morrison, 1 Sumn. 448; U. S. v. Ashton, 2 Sumn. 13; U. S. v. Cassedy, 2 Sumn. 582; U. S. v. Rogers, 3 Sumn. 342. Now, as we have already remarked, a charge for such an offence as was the subject of all these cases, resting merely in the endeavor, not going to the perfected act, was, according to all the authorities, well laid in the succinct descriptive words of the section; and in the only cases under the 8th section, in which the principal offence of making a revolt was charged (U. S. v. Sharp, 1 P. C. C. R. 118; Same v. Same, 1 P. C. C. R. 131; and U. S. v. Haskell, 4 W. C. C. R. 402), the indictment was quashed or the judgment arrested on other grounds, or else the acquittal of the prisoner made it necessary to discuss the question which is now before us. sentence has ever been pronounced on such a conviction.

Νο

"Indeed, the courts before whom the cases were tried on indictments like this, though the particular question was not raised upon the pleadings, felt themselves embarrassed by the undefined phraseology of the act of congress, and Judge Washington more than once recommended to the jury not to find the defendant guilty of either making or endeavoring to make a revolt, however strong the evidence might be. See U. S. v. Sharp, and U. S. v. Bladen, ut supra.

The question of the meaning of these terms was at last submitted to the supreme court of the United States, in a case that went up on a certificate of division from this circuit (U. S. v. Kelly, ut supra, and Wheat. 417), and in the spring of 1826 the import of the act of congress of 1790 was judicially determined. "In 1835, however, a new act of congress was passed, which, obviously referring to the language of the supreme court in Kelly's case, yet not adopting it, proceeded to declare what violations of law should thereafter be deemed to constitute the crime of revolt. The language of the first section of this act is as follows:"If any one or more of the crew of any American ship or vessel on the high seas, or on other waters within the admiralty or maritime jurisdiction of the United States, shall unlawfully, wilfully, and with force, or by fraud, threats, or other intimidations, usurp the command of such ship or vessel from the master, or other

(c) A count for a revolt may be joined with a count for an endeavor to commit a revolt, and after a general conviction, judgment will not be arrested on account of such joinder. U. S. v. Peterson, 1 Wood. & Min. 305.