US SUPREME COURT DECISIONS

THIS was a prosecution, on the 2d section of the act of congress, of the 26th of March 1804, (7 vol. 126.) which is expressed in these words: ' Be it further enacted, That if any person shall, on the high seas, wilfully and corruptly cast away, burn, or otherwise destroy, any ship or vessel of which he is owner, in part or in whole, or in anywise direct or procure the same to be done, with intent or design to prejudice any person or persons that hath underwritten, or shall underwrite, any policy or policies of insurance thereon, or if any merchant or merchants that shall load goods thereon, or of any other owner or owners of such ship or vessel, the person or persons offending therein, being thereof lawfully convicted, shall be deemed and adjudged guilty of felony, and shall suffer death.' [Footnote 1]

In the course of the prosecution and trial, the following points occurred.

I. The defendant was brought, by habeas corpus, before the Court, holding an adjourned session, on the 8th of January 1806, when it appeared that, on the 27th of December 1805, he

Page 4 U.S. 412, 413

had been committed by the mayor of the city of Philadelphia, 'charged on the oath of Andrew Clarke with having on the 20th day of August last, or thereabouts, on the high seas, scuttled the schooner Enterprize of Baltimore, with intention to defraud the underwriters, as he believes.' The prisoner's counsel objected, 1st. That the commitment was vague, and did not describe the offence, within the words of the act of Congress. 2d. That the offence was not committed within the district of Pennsylvania; and no demand having been made for his surrencer by the executive of any other state, there was no law to warrant his arrest, or detention. 3d. That the evidence was not sufficiently strong, to found an indictment against him and he was entitled, at all events, to be discharged on bail. It was answered, by the attorney of the district, 1st. That whatever might be the formal defects of the original commitment, the Court, being now satisfied with the evidence, would remand the prisoner for trial. 2d. That it was not necessary, for that purpose, to give positive proof of guilt; but so show probable cause for the accusation. 3d. That the case did not come, at all, under the constitutional, or legislative, provisions, for the surrender of a fugitive from the justice of another state; but it was the case of a crime against the United States, committed on the high seas; when the trial is directed to be in the district, where the offender is apprehended. 1 vol. 103.s. 8. 1 vol. 72, 3. s. 33.

By the COURT: Upon a habeas corpus, we are only to inquire, whether the warrant of commitment states a sufficient probable cause to believe, that the person charged, has committed the offence stated. We have heard the evidence; and cannot doubt of its sufficiency to that extent. We do not think, that the prisoner ought either to be discharged, or bailed. He must be remanded for trial. II. When the panel of jurors was called over, the prisoner's counsel claimed the right to challenging thirty-five jorors peremptorily, as the offence, charged in the indictment, had been created, since the act of the 30th of April 1790 (1 vol. 113. s. 30.) and the right of challenge remained as at common law. 4 Hawk. 389. 4 Bl. C. ___. The clause, respecting challenges is in these words: 'If any person, or persons be indicted of treason against the United States, and shall stand mute, or refuse to plead, or shall challenge peremptorily above the number of thirty-five of the jury; or if any other person, or persons, be indicted of anyother of the offences hereinbefore set forth, for which the punishment is declared to be death, if he or they shall so stand mute, or will not answer to the indictment, or challenge peremptorily above the number of twenty persons of the jury; the Court, in any of the cases aforesaid, shall notwithstanding proceed to the [4 U.S. 412, 414]

Full Text of Opinion