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to hard labour not exceeding ten years, according to the aggravation of the offence.(1)
2661. If any offence shall be committed in any of the places aforesaid, the punishment of which offence is not specially provided for by any law of the United States, such offence shall, upon a conviction in any court of the United States having cognizance thereof, be liable to, and receive, the same punishment as the laws of the state in which such fort, dock yard, navy yard, arsenal, armory, or magazine, or other place, ceded as aforesaid, is situated, provide for the like offence, when committed within the body of any county of such state.(2)*
2662. If any person or persons having knowledge of the actual commission of the crime of wilful murder or other felony, upon the high seas, or within any fort, arsenal, dock yard, magazine, or other place or district of country, under the sole and exclusive jurisdiction of the United States, shall conceal, and not as soon as may be, disclose and make known the same to some one of the judges or other persons in civil or military authority under the United States, on conviction thereof, such person or persons shall be adjudged guilty of misprison of felony, and shall be imprisoned not exceeding three years, and fined not exceeding five hundred dollars.(3)
Of Offences against the Persons of Individuals.
ART. 2663. If any person or persons within any of the places upon the land under the sole and exclusive jurisdiction of the United States, or upon the high seas, in any vessel belonging to the United States, or to any citi zen or citizens thereof, on purpose and of malice aforethought, shall unlaw. fully cut off the ear or ears, or cut out or disable the tongue, put out an eye, slit the nose, cut off the nose or a lip, or cut off or disable any limb or member of any person, with intention in so doing to maim or disfigure such person in any the manners before mentioned, then and in every such case the person or persons so offending, their counsellors, aiders and abettors, (knowing of and privy to the offence aforesaid) shall, on conviction, be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars.(4)
2664. If any person or persons upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin or bay, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state, on board any vessel belonging in the whole or in part to the United States, or any citizen or citizens thereof, shall, with a dangerous weapon, or with intent to kill, rob, steal, or to commit a mayhem or rape, or to perpetrate any other felony, commit an assault on another, such person shall, on conviction thereof, be punished by fine not exceeding three thousand dollars, and by imprisonment and confinement to hard labour, not exceeding three years, according to the aggravation of the offence.(5)
(1) Act 3d March, 1825, sec. 2.
(2) Ibid. sec. 3.
(3) Act 30th April, 1790, sec. 6.
(4) Ibid. sec. 13.
(5) Act 3d March, 1825, sec. 22.
This section is limited to the laws of the several states in force at the time of
its enactment.-U. S. v. Paul, 6 Pet. 141.
Of Larceny and Embezzlement of Property.
ART. 2665. If any person within any of the places under the sole and exclusive jurisdiction of the United States, or upon the high seas, shall take and carry away, with an intent to steal or purloin the personal goods of another; such person so offending, his counsellors, aiders and abettors (knowing of and privy to the offences aforesaid) shall, on conviction, be fined not exceeding the fourfold value of the property so sold, embezzled or purloined; the one moiety to be paid to the owner of the goods, and the other moiety to the informer and prosecutor, and be publicly whipped, not exceeding thirty-nine stripes. (1) *
2666. If any person or persons within any part of the jurisdiction of the United States as aforesaid, shall receive or buy any goods or chattels that shall be feloniously taken or stolen from any other person, knowing the same to be stolen, or shall receive, harbour or conceal any felons or thieves, knowing them to be so, he or they being of either of the said offences legally convicted, shall be liable to the like punishments as in the case of larceny before are subscribed.(2)
2667. If any person who shall be employed as president, cashier, clerk or servant in the bank of the United States, created and established by an act, entitled, "An act to incorporate the subscribers to the bank of the United States" passed on the tenth day of April, in the year of our Lord one thousand eight hundred and sixteen; or in any office of discount and deposite established by the directors of said bank in any state or territory of the United States, shall feloniously take, steal and carry away any money, goods, bond, bill, bank note or other note, check, draft, treasury note or other valuable security or effects belonging to said bank or deposited in said bank; or if any person so employed as president, cashier, clerk or servant shall fraudulently embezzle, secrete or make away with any money, goods, bond, bill, bank note, or other note, draft, treasury note, or other valuable security or effects which he shall have received, or which shall come to his possession or custody by virtue of such employment: every person so offending shall be deemed guilty of felony, and shall, on conviction thereof, be punished by fine not exceeding five thousand dollars, and by imprisonment and confinement to hard labour not exceeding ten years, according to the aggravation of the offence.(3)
Conspiracy to destroy Vessels.
ART. 2668. If any person or persons shall on the high seas or within the United States, wilfully and corruptly conspire, combine and confederate with any other person or persons, such other person or persons being either
(1) Act 30th April, 1790, sec. 16. (2) Ibid. sec. 17.
(3) Act 3d March, 1825, sec. 16.
Larceny committed on board an American vessel in an enclosed dock in a foreign country, not being on the high seas, is not punishable under article 2665. -U. S. v. Hamilton, Mason, 152.
within or without the United States, to cast away, burn or otherwise destroy, any vessel, or to procure the same to be done, with intent to injure any person or body politic, that hath underwritten, or shall thereafterwards underwrite any policy of insurance thereon, or on goods on board thereof, or with intent to injure any person or body politic that hath lent or advanced, or thereafter shall lend or advance, any money on such vessel, on bottomry or respondentia, or shall within the United States, build or fit out, or aid in building or fitting out, any vessel with intent that the same shall be cast away, burnt or destroyed, for the purpose or with the design aforesaid, every person so offending, shall, on conviction thereof, be deemed guilty of felony, and shall be punished by fine not exceeding ten thousand dollars, and by imprisonment and confinement to hard labour not exceeding ten years.(1)
ART. 2669. For any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any justice of the peace, or other magistrate of any of the United States where he may be found agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested, and imprisoned or bailed, as the case may be, for trial before such court of the United States as by this act has cognizance of the offence: And copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case; which recognizances the magistrate before whom the examination shall be, may require on pain of imprisonment.(2)
(1) Act 3d March, 1825, sec. 23.
(2) Act 24th Sept. 1789, sec. 33.
2670. And if such commitment of the offender, or the witnesses, shall be in a district other than that in which the offence is to be tried, it shall be the duty of the judge of that district where the delinquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offender, and the witnesses or either of them, as the case may be, to the district in which the trial is to be had.(1)
2671. And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and the usages of law.(1)
And if a person committed by a judge of the supreme court or a judge of a district court for an offence not punishable with death, shall afterwards procure bail, and there be no judge of the United States in the district to take the same, it may be taken by any judge of the supreme, or superior court of law of such state.(1)
Bail for appearance in any court of the United States in any criminal cause in which bail is by law allowed, may be taken by any judge of the United States, any chancellor, judge of a supreme or superior court, or chief or first judge of a court of common pleas of any state, or mayor of a city in either of them, and by any person having authority from a circuit court, to take bail; which authority, revocable at the discretion of such court, it may give to one or more discreet persons learned in the law in any district for which such court is holden, where, from the extent of the district, and remoteness of its parts from the usual residence of any of the before named officers, such provision shall, in the opinion of the court, be necessary: Provided, That nothing herein shall be construed to extend to taking bail in any case where the punishment for the offence may be death; nor to abridge any power heretofore given by the laws of the United States, to any description of persons to take bail.(2)*
(1) Act 24th Sept. 1789, sec. 33.
(2) Act 2d March, 1793, sec. 4.
The courts of the United States, though not expressly invested with such power by statute, have necessarily, from the duties assigned to them, the power to commit persons charged with an offence against the United States, and to take bail in such case.-U. S. v. Burr, Trial, 80.
To warrant a commitment the proof requisite for conviction of the prisoner is not necessary, but probable cause must be shown. Probable cause consists of proof authorizing a rational belief that the person charged has committed the alleged offence to remove such probable cause, it must be made apparent that no such crime has been committed, or that the suspicion entertained of the prisoner is entirely groundless.-Ibid.
A magistrate or court may commit upon affidavits, made before another magistrate; the proceedings before trial being ex parte. The oath must be an absolute and a legal oath, and must legally appear to the court to be such. The affidavit is not in itself conclusive, but the circumstances relating to it, and under which it is presented to the court may be considered.-Ibid. 15, 17, 97, 99.
The warrant of commitment must state some good and certain cause supported by oath. But if the prisoner be discharged by the court upon an habeas corpus, and there be good cause for his commitment, he may be proceeded against de novo. -Ex parte Burford, 3 Cr. 447.
If the magistrates refuse to commit for want of probable cause, yet the attorney general of the United States may prefer an indictment. And the court may at their discretion, where the evidence justifies commitment, commit the prisoner, though a grand jury be sitting competent to receive and determine a bill of indictment on the charge against him.-U. S. v. Burr, 18, 80, 81.
2672. 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 person or persons be indicted of any other of the offences herein before set forth, for which the punishment is declared to be death, if he or they shall 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 trial of the person or persons so standing mute or challenging, as if he or they had pleaded not guilty, and render judgment thereon accordingly.(1)*
Whenever any person, indicted for any offence against the United States, whether capital or otherwise, shall, upon his arraignment, stand mute, or will not plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf, in the same manner as if he had pleaded not guilty thereto. And when the party shall plead not guilty, or such plea shall be entered as aforesaid, the cause shall be deemed at issue, and shall, without further form or ceremony, be tried by a jury. And in all trials in capital cases, if the party indicted shall peremptorily challenge above the number of jurors allowed by law, such excess of challenges shall be disallowed by the court, and the cause shall proceed for trial in the same manner, as if the said challenges had not been made.(2)
2673. The benefit of clergy shall not be used or allowed, upon conviction of any crime for which, by any statute of the United States, the punishment is or shall be declared to be death.(3)
(1) Act 30th April, 1790, sec. 29. (2) Act 3d March, 1835, sec. 4.
(3) Act 30th April, 1790, sec. 30.
If the judge reject a motion to commit the accused, because of the insufficiency of the testimony against him, yet another motion for committal may be made upon new evidence.-Ibid.
On a motion to commit for treason, no evidence of a treasonable intent will be received, until the commission of treason have been first proved.-Ibid. 96. But it is otherwise on an indictment for treason.-Ibid. 496. The circuit court of a district composed of a state, cannot commit for trial in a territory of the United States.-U. S. v. Burr.
The 34th section of the act of 1789, (article 485) directing that the laws of the several states to be regarded as rules of decision, in trials at common law in the courts of the United States, in cases where they apply, does not refer to criminal proceedings.-Ibid. 81.
Under the 33d section of the act of 1789, providing for an arrest in the first instance, a capias or bench warrant may issue from the court, to arrest one against whom a bill of indictment is found for libel or misdemeanor, that he may be committed or held to bail, though by the law of the state, a summons issues in such cases in the first instance. If the prisoner be already in custody, an order of the court may be made in lieu of the capias.-Ibid. 117, 185.
Circumstances must be strongly in favour of a defendant to induce the court to admit him to bail when charged with treason: And after indictment found, bail will not be taken.-U. S. v. Stuart, 2 Dall. 344.
The words "herein set forth," confine the provisions of the article 2672, to offences described in the act of 30th April, 1790: In the trial of offences created since, the prisoner is entitled to challenge thirty-five as at common law.-4 Dall. 414. But see supra, act 3d March, 1835, sec. 4.
An indictment for levying war against the United States, must specify an overt act, stating the place at which it was committed, and the particular manner in which the war was levied. It is not sufficient to allege that the accused had levied war against the United States.-U. S. v. Burr, 4 Cr. 490.
To justify the finding an indictment for treason true by the grand jury, one witness is sufficient to prove one overt act, and another to prove another.-U. S. v. Burr, Trial, 196.-Sed contra U. S. v. Fries, Trial, 14.
The overt act laid must be proved by two witnesses, to have been committed