U S v. MCGILL, 4 U.S. 426 (1806)

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U.S. Supreme Court

U S v. MCGILL, 4 U.S. 426 (1806)

4 U.S. 426 (Dall.)

The United States
James McGill.

Circuit Court, Pennsylvania District.

October Term, 1806

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 [4 U.S. 426, 428]

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