United States v. Gordon. nesses, that his father was a sea captain, and that sometimes his wife, the defendant's mother, accompanied him on his foreign voyages. The defendant's counsel claimed, that it appeared, from this evidence, that he might have been born abroad, and that, if he was, he was not a citizen of the United States, and, therefore, not amenable to those criminal laws of the United States which are limited in terms to its citizens. The Court instructed the jury, however, that, even if the defendant was born during one of those voyages which the father made as a sea captain, without any intention of removing to, but merely touching at, foreign countries, he would still be regarded in law as an American citizen, although thus born abroad, provided his parents were American citizens. The defendant's counsel excepted to this part of the charge, on the ground that it did not lay down the correct rule of law applicable to children of American parents, born in foreign countries. Without here discussing the general principles of law applicable to that subject, it is a sufficient answer to the exception taken in this case, that the charge on this point, taken in connection with the facts in evidence to which it was to be applied, clearly referred to a possible birth of the defendant on board of his father's American vessel, while the latter was in a foreign country, in the course of the voyage. We are clearly of opinion, that there was no error in this part of the charge. The only remaining objection that we deem it necessary to notice, is, that, if the Erie was a foreign vessel, even admitting the citizenship of Gordon, this Court has not the jurisdiction to try him for an act committed on the river Congo, in the Portuguese dominions, and not on tide waters. There are two answers to this objection. First. There is no proof that the Erie was a foreign vessel, but the proof is clear and uncontradicted that she was an American vessel, owned by American citizens. Second. The allegation, in the indictment, that the offence was committed "in the river Congo, on the coast of Africa, on waters within the admiralty and maritime jurisdiction of the United States, and within the United States v. Gordon. jurisdiction of this Court," is, we think, fully sustained by the proof. The proof is, that the negroes were taken on board in the Congo river, some distance from its mouth, but where it is several miles broad, and really an arm of the sea. The proof is clear and uncontradicted, that the offence of confining and detaining the negroes on board was continuous and uninterrupted, until her capture in the Atlantic Ocean, several miles from land. Of course, it was committed in the very mouth of the river, where its broad expanse is lost in the Atlantic, and where the jurisdiction of every nation, over its citizens or its ships, clearly extends. The other exceptions to these two counts and to the charge are overruled. Upon all these points, we are clearly of opinion that there is no error in the indictment, and that none intervened on the trial, and that the jurisdiction of the Court is beyond dispute. We are, therefore, constrained to deny the application for a certificate of division, which is asked for by the defendant, to enable him to carry the case to the Supreme Court. It is hardly necessary for me to add that these views are the result of consultation, and are fully concurred in by Mr. Justice Nelson. Sentence of death being about to be passed on the defendant by Judge Shipman, holding the Court alone, in the absence of Mr. Justice Nelson, it was objected by the counsel for the defendant, that this could not be done, because the trial had taken place before both of the Judges. Judge Shipman stated, that he and Mr. Justice Nelson had agreed, on consultation, that it was competent for the Court, when held by only one of the Judges, to pass the sentence. United States v. Westervelt. THE UNITED STATES VS. MINTHORNE WESTERVELT. Under the 4th section of the Act of May 15th, 1820, (3 U. S. Stat. at Large, 600,) in regard to the slave trade, the offences prohibited may be committed by any citizen of the United States, on board of any vessel, whether foreign or American. Under that section, it is an offence to receive negroes on board of a vessel, from persons who have seized them and brought them to the vessel's side, in violation of the law; and any person of the vessel's company, on board of the vessel, who is competent to commit a crime, commits such offence by voluntarily receiving, or actually participating in the reception of, the negroes on the vessel, with the intent to make them slaves. Facts and circumstances stated which would amount to a restraint, so as to deprive the acts of a voluntary character, in the case of the subordinates of a vessel. (Before NELSON and SHIPMAN, JJ., Southern District of New York, November 13th, 1861.) THIS was an indictment founded on the 4th and 5th sections of the Act of Congress of May 15th, 1820, (3 U. S. Stat. at Large, 600,) entitled, "An Act to continue in force An Act to protect the commerce of the United States and punish the crime of piracy,' and also to make further provisions for punishing the crime of piracy." The defendant, at the time of the commission of the offence charged, was the third mate of the ship Nightingale. The trial took place before Mr. Justice Nelson and Judge Shipman and a jury. NELSON, J., charged the jury as follows: This indictment is founded upon the 4th and 5th sections of the Act of Congress of May 15th, 1820, (3 U. S. Stat. at Large, 600.) The 4th section is as follows: "If any citizen of the United States, being of the crew or ship's company of any foreign vessel engaged in the slave trade, or any person whatever, being of the crew or ship's company of any ship or vessel, owned in the whole or part, or navigated for, or in be United States v. Westervelt. half of, any citizen or citizens of the United States, shall land from any such ship or vessel, and, on any foreign shore, seize any negro or mulatto, not held to service or labor by the laws of either of the States or territories of the United States, with intent to make such negro or mulatto a slave, or shall decoy, or forcibly bring, or carry, or shall receive, such negro or mulatto on board any such ship or vessel, with intent as aforesaid, such citizen or person shall be adjudged a pirate, and, on conviction thereof before the Circuit Court of the United States for the district wherein he may be brought or found, shall suffer death." The 5th section annexes the same penalty against any citizen or foreigner who shall, under the circumstances stated in the previous section, forcibly confine or detain any negro or mulatto on such vessel, with the intent to make him a slave, or aid and abet in thus confining and detaining him. The third count of the indictment charges that the prisoner, a citizen of the United States, of the ship's company of the ship Nightingale, a foreign vessel, engaged in the slave trade, did, piratically and feloniously, receive eight hundred negroes on board of such vessel, with the intent to make them slaves. The seventh count charges the prisoner, a citizen of the United States, with aiding and abetting in the forcible confinement and detention of the negroes, with intent to make them slaves. This is made an offence under the 5th section of the Act. We lay this count out of the case, inasmuch as, if the prisoner is guilty at all, he is guilty as principal. Indeed, though there are several counts set forth in the indictment, we do not think it necessary to call your attention to any other than the third. The prisoner at the bar is a citizen of the United States; and hence it will not be material to trouble you with any observations upon the point, as to whether the ship Nightingale, at the time of the alleged crime, was an American vessel, or owned, in whole or in part, by American citizens. The prisoner being a citizen, the offence may be committed by him on board of any vessel, whether foreign or American. We have, therefore, confined the application of the evidence in United States v. Westervelt. the case to the third count in the indictment, which lays the offence against the prisoner as a citizen of the United States, and charges that he did, piratically and feloniously, receive the negroes on board of the ship Nightingale, with the intent to make them slaves. A question has been made, whether or not some force does. not enter as an element into the crime, under this clause of the statute. There are four descriptions of the offence, to be found in this section: 1. Landing and seizing the negroes; 2. Forcibly bringing and carrying them on board; 3. Decoying them; 4. Receiving them on board of the vessel. The first two comprehend the use of force as a necessary element; the last two, decoying or receiving on board, do not. The question here is under the last clause of the statute. We instruct you, that receiving the negroes on board, from persons who had seized and brought them to the ship's side, in violation of the law, may constitute this offence, under the statute. It has been urged, that the offence under this section can be committed only by some person who has an interest in the negroes, or, at least, by some person who has the power upon the ship to receive or reject them. But this, we think, is too narrow a construction of the Act. Our view of it is, that any person of the ship's company, on board of the ship, who is competent to commit a crime, is capable of committing the offence under the statute, by voluntarily, freely, and willingly receiving the negroes upon the ship, with the intent to make them slaves, or by actually participating in such reception, with the like intent, which makes him a principal in the offence. The statute excludes any such distinction, in our judgment, as is set up by the counsel for the prisoner. Any citizen, being of the crew or ship's company of the vessel, may be charged with the offence. This is the only limit as to the condition of the persons exposed to the crime. We agree, that a person may engage or participate in the reception of the negroes on board, and still not be gulity of the offence. He may be acting under compulsion, physical or moral. The |