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Boker v. Bronson.

or by the Act of 1857, but remains in force. There was, therefore, no error in the instructions given by the Court to the jury, and there must be a judgment for the plaintiff, on the verdict.

JOHN BOKER vs. GREENE C. BRONSON.

The practice, in this Court, on a decision being made by the Court, is to enter a formal order upon it, and not to regard the decision itself as an order. Where, on a motion for a new trial, a written decision was made by the Judge holding the Court, and filed, granting a new trial on condition of the payment of costs" within twenty days after service of this order," and no other or more formal order was made, and the costs were not paid: Held, that the party making the motion was not in default, in not paying the costs.

(Before SMALLEY, J., Southern District of New York, January, 1861.)

THIS was an action at common law, in which a verdict was rendered for the plaintiff. On a motion for a new trial made by the defendant, a written decision was made by the Judge holding the Court, and filed, granting a new trial on condition that the defendant "pay the costs of the trial within twenty days after service of this order." No other or more formal order was made. A copy of the decision was served, but, the cost not having been paid, the plaintiff now moved for judgment on the verdict.

ant.

Almon W. Griswold, for the plaintiff.

James I. Roosevelt, (District Attorney,) for the defend

SMALLEY, J. The question of practice in this case is, whether the decision of the Judge is to be considered as an order, or whether a regular order should have been entered. The practice in this Court is, to enter an order upon a decision made by the Court. As no such order was entered in

United States v. Baker.

this case, the defendant was not in default in not paying the costs. The proper course was for the plaintiff to enter the order and serve a copy of it.

THE UNITED STATES

Motion denied.

vs.

THOMAS HARRISON BAKER, AND OTHERS.

Semble, That, under the 14th section of the Act of March 3d, 1825, (4 U.S. Stat. at Large, 118,) which provides that the trial of all offences which shall be committed upon the high seas, or elsewhere, out of the limits of any state or District, shall be in the District where the offender is apprehended, or into which he may be first brought, an offender captured on the high seas by a public armed vessel of the United States, and ordered to New York for trial, and put on board of a vessel destined for Hampton Roads, and taken to Hampton Roads, and there transferred to another vessel by which he is taken to New York, where he is arrested for the offence, is not to be regarded as having been brought into the District in which Hampton Roads is situated. That provision of the 14th section is in the alternative, and, under it, an offender may be tried either in the District into which he is first brought, or in the District in which he is apprehended, under lawful authority, for trial for the offence.

The 3d section of the Act of May 15th, 1820, (3 U. S. Stat. at Large, 600,) in regard to robbery on the high seas, applies to all persons, whether citizens or foreigners.

The 9th section of the Act of April 30th, 1790, (1 U. S. Stat. at Large, 114,) in regard to piracy or robbery on the high seas, applies only to citizens and not to foreigners.

A nation at war may commission private armed vessels to carry on war against its enemy on the high seas, and the commission will afford protection, even in the judicial tribunals of the enemy, against a charge of the crime of robbery or piracy.

Such a commission would be a good defence against an indictment under the 3d section of the Act of 1820.

The 9th section of the Act of 1790 changes that rule, as it respects citizens of the United States who take service under a commission to a private armed vessel from the enemy of their country.

The term "robbery," as used in the 3d section of the Act of 1820, means, the ⚫felonious taking of the goods or property of another, of any value, from his

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United States v. Baker.

person or in his presence, against his will, by violence or putting him in fear.

A felonious taking means a taking with a wrongful intent to appropriate the goods of another.

The taking, to be within said 3d section, need not be a taking which, if upon the high seas, would amount to piracy according to the law of nations. Piracy according to the law of nations, defined.

Until the Legislature and Executive departments of the United States Government recognize the existence of a new foreign government, the Courts of the United States cannot do so; and the same doctrine applies to the erection of a new government within the limits and against the authority of the Government of the United States.

The Courts must look to the acts of those departments as evidence on the question of such recognition.

(Before NELSON and SHIPMAN, JJ., Southern District of New York, October 30th, 1861.)

THIS was an indictment against Thomas Harrison Baker, John Harleston, Charles Sidney Passalaigue, Henry Cashman Howard, Joseph Cruz del Carno, Henry Oman, Patrick Daly, William Charles Clark, Albert Gallatin Ferris, Richard Palmer, John Murphy, Alexander Carter Coid, and Martin Galvin. It was found on the 26th of June, 1861. The defendant Baker was the master, and the other defendants were a part of the officers and crew of a private armed schooner, called the Savannah, and claimed to have acted, in committing the alleged offences, under the authority of the following commission: "Jefferson Davis, President of the Confederate States of America, to all who shall see these presents, greeting: Know ye, that by virtue of the power vested in me by law, I have commissioned, and do hereby commission, the schooner or vessel called the Savannah, (more particularly described in the schedule hereunto annexed,) whereof T. Harrison Baker is commander, to act as a private armed vessel in the service of the Confederate States, on the high seas, against the United States of America, their ships, vessels, goods and effects, and those of their citizens, during the pendency of the war now existing between the said Confederate States and the said United States. This commission to continue in force until revoked by the President of the Confederate States for

United States v. Baker.

the time being. Given under my hand and the seal of the Confederate States, at Montgomery, this eighteenth day of May, A. D., 1861. (L. S.) Jefferson Davis. By the President, R. Toombs, Secretary of State. Schedule of description of the vessel: Name-Schooner Savannah. Tonnage-Fifty-three 4th tons. Armament-One large pivot gun and small arms. No. of crew-Thirty." The substantive offence charged, was the capture, by the Savannah, on the high seas, on the 3d of June, 1861, of the brig Joseph, belonging to citizens of the United States. The indictment alleged, that the Southern District of New York was the District into which the defendants were brought, and in which they were found, and where they were apprehended, and into which they were first brought for the offence. The indictment was tried at the October Term, 1861, before Mr. Justice Nelson and Judge Shipman and a jury.

NELSON, J., charged the jury as follows:

The first question presented in this case is, whether or not this Court has jurisdiction of the offence? This depends upon the following clause in the 14th section of the Act of Congress of March 3d, 1825, (4 U. S. Stat. at Large, 118:) "And the trial of all offences which shall be committed upon the high seas, or elsewhere, out of the limits of any State or District, shall be in the District where the offender is apprehended, or into which he may be first brought." The prisoners, who were captured by an armed vessel of the United States, off Charleston, South Carolina, were ordered by the commander of the fleet to New York for trial; but the Minnesota, on board of which they were placed, was destined for Hampton Roads, and it became necessary, therefore, that they should be there transferred to another vessel. They were thus transferred to the Harriet Lane, and, after some two days' delay, consumed in the preparation, they were sent on to this port, where they were soon after arrested by the civil authorities. It is insisted, on behalf of the prisoners, that, inasmuch as Hampton Roads, to which place the prisoners were taken, and where they were

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United States v. Baker.

transferred to the Harriet Lane, was within the Eastern District of the State of Virginia, the jurisdiction attached in that District, as that was the first District into which the prisoners were brought. The Court is inclined to think that the circumstances under which the Minnesota was taken to Hampton Roads, in connection with the original order by the commander that the prisoners should be sent to this District for trial, do not make out a bringing into that District, within the meaning of the statute. But we are not disposed to place the decision on this ground. The Court is of opinion, that the clause conferring jurisdiction is in the alternative, and that jurisdiction may be exercised either in the District into which the prisoners were first brought, or in that in which they were apprehended under lawful authority, for trial for the offence. This brings us to the merits of the case.

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The indictment under which the prisoners are tried contains ten counts. The first five are founded upon the 3d section of the Act of Congress of May 15th, 1820, (3 U. S. Stat. at Large, 600,) which provides " that, if any person shall, upon the high seas, * **commit the crime of robbery, in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate," and, upon conviction, shall suffer death. These five several counts charge, in substance, that the prisoners did, upon the high seas, enter in and upon the brig Joseph, the same being an American vessel, and upon the ship's company, naming them, did, then and there, piratically, feloniously and violently make an assault, and put them in personal fear and danger of their lives, and did, then and there, the brig Joseph, and her tackle, apparel, and lading (describing it), which were in the custody and possession of the master and crew, from the said master and crew, and from their possession, and in their presence, and against their will, violently, piratically and feloniously seize, rob, steal, take and carry away, against the form of the statute, &c. There are some variances in the different counts, but it will not be material to notice them. It will be observed, that this provision of the Act of

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