United States v. Williams and Cox. The record does show that the confessions were given under oath. The prisoners were first sworn to tell the truth about the loss of the Albion Cooper; and in their confessions there was no change of subject, and no purgation from the oath. The following are the English cases: Berwick's Case, Fost. 10; Francias's Case, 1 East P. C. 133; Lamb's Case, 2 Leach, 552; Thomas's Case, 2 Leach, 637; Wheeling's Case, 1 Leach, 311; Rex v. Eldridge, Russ. & R. 440; Rex v. White, Russ. & R. 508; Rex v. Tippet, Russ. & R. 509; Rex v. Falkner et al., Russ. & R. 481; 1 Ph. Ev. 535; 1 Arch. Cr. L. 126. These do not support the rule in Badgely's Case, 16 Wend. 53. The American decisions agree with the text-books in laying down the rule of law, that in capital cases the corpus delicti cannot be proved by confessions, but must be proved, before the jury can convict, by independent testimony, by proof aliunde. In 1 Greenl. Ev. § 217, is to be found the full and accurate statement of the law upon this point, and his high authority is supported by other writers of unquestioned accuracy. Cowen & Hill's Notes of 1 Ph. Ev. 532; Whart. Cr. L. § 683; 2 Russ. on Cr. 824, 825 note, and 826. The American cases are not numerous. 15 Wend. 147; 16 Wend. 63. The earlier of these, Hennesey's Case, is one in which the facts and results favor the motion of the prisoners. The verdict was set aside for want of evidence aliunde. In Badgely's Case the conviction was confirmed, and thus the two cases move in opposite directions. State v. Aaron, 1 South. 231; State v. Guild, 5 Hals. 163; Stringfellow's Case, 26 Miss. R. 157. George F. Shepley, United States District Attorney. It is not necessary that the word "grand" should precede the word "jurors" in the indictment. Whart. Prec. 14, note a. The court knows, from its record in the case, that the bill has been brought into the court by the grand jury, and that the signature of the foreman is that of the foreman of the grand jury. Commonwealth v. Read, Thach. Cr. C. 180. The words "the jurors for the said United States" as clearly United States v. Williams and Cox. show they were the grand jurors as in the English indictments the words "the jurors for our Lady the Queen." This is in accordance with the form invariably used in the Federal courts in Maine and Massachusetts from the adoption of the Federal Constitution. United States v. Bird; United States v. Hobart (not reported). From the time of the finding of these indictments, the one the first capital case after the adoption of the Constitution, the other the first in the Federal courts in Maine after the separation, the practice has been uniform, and the same form of commencement in this respect has been observed in the Federal courts as in the State courts in Maine and Massachusetts. Process Act, 4 Stat. at Large, 478. If there was any doubt upon the question whether the confessions were or not made under oath, the prisoners have had the benefit of that, for the court instructed the jury that if they believed the confessions to have been under oath, or if they believed even that the persons supposed themselves to have been under the influence of an oath, and that these confessions were induced by the influence of that belief, they should disregard them. The reason for excluding confessions is not that one is less likely to tell the truth under oath than not under oath, but it is that one under examination charged with crime is not bound to criminate himself. Consequently, if the examining magistrate puts him under oath when he is charged with crime, what he says while under oath is not deemed a voluntary statement. He is supposed to have been required to answer instead of having volunteered his statement. There has been no invasion of the right of a person charged with crime not to be compelled to give evidence against himself. But at the same time, what a person has testified to under oath while being examined as a witness in favor of or against other parties, or before a grand jury, or before a coroner's inquest, before he was himself charged with crime, has been received. People v. McMahon, 2 Parker Cr. R., 663-670, 671, 672; People v. Hendrickson, 1 Parker Cr. R., 396; Wheater's Case, 2 Moo. C. C. 45. United States v. Williams and Cox. In Rex v. Wilkinson, 8 Car. & P. 662, the confession of the prisoner was received, though not signed by himself or the magistrate who wrote it; and the statements read to the jury. The general principle is, that a voluntary confession is one of the strongest proofs of guilt, and the highest species of evidence. 2 Stark. Ev. 36; 1 Ph. Ev. (7th ed.) 110, 111; 2 Russ. on Cr. c. 4, § 1, 824; Rosc. Cr. Ev. 37; Gilb. Ev. 137; 1 Greenl. Ev. § 215; Warickshall's Case, 1 Leach, 263. Hence the maxim, Habemus optimum testem confitentem reum. Confessions are divided into two classes, judicial and extrajudicial. 1 Greenl. Ev. § 216, p. 273. A judicial confession, voluntarily made and regularly proved, is sufficient, if the jury believe it, to convict the prisoner without any corroborating evidence. 2 Hawk. B. 2, c. 46, § 29; 1 Ph. Ev. (4th Am. ed.) 541; Stark. Ev. Part 4, 53; Guild's Case, 5 Halst. 186. An extra-judicial confession, not subject to any imputation of having been induced by the torture of fear, or the flattery of hope, furnishes sufficient ground for conviction when confirmed by corroborating circumstances. It is not necessary that such corroborating testimony should afford plenary proof of the corpus delicti. Greenleaf, while admitting the law in England to be as contended for, claims that a different rule obtains in the decisions of the courts of the United States, and that, before a conviction can be based upon a confession, there must be independent proof of the corpus delicti. 1 Greenl. Ev. § 217. The only cases referred to as sustaining this position are State v. Long, 1 Hayw. 455,-a per curiam opinion overruled in State v. Broughton, 7 Ired. 96, and Guild's Case, 5 Halst., 163, in which it is expressly decided that it is only necessary that the confession should be corroborated. 2 Hawk. c. 46, § 36, is also referred to. But, so far from sustaining the position laid down in 1 Greenleaf, § 217, both the thirty-sixth section and section thirty-ninth will be found to state a proposition diametrically the opposite. If by the word "proof" Greenleaf is to be understood as meaning plenary proof, his statement is entirely unsupported on principle, or by any authority. United States v. Williams and Cox. The only explanation that can be made is, that the word "proof" was used by him to mean evidence merely. People v. Hennesey, 15 Wend. 147; People v. Badgely, 16 Wend. 53. Full proof of the body of the crime, the corpus delicti, independently of the confessions, is not required by any of the cases; and in many of them slight corroborating facts were held sufficient. People v. Badgely, 16 Wend. 59. The prisoners, and the prisoners only, know the fact of the death absolutely and with certainty. Shall they not be allowed to prove by their oft-repeated and voluntary and corroborated statements a fact against themselves, of which their evidence would have afforded plenary proof against any other person? and if so, upon what principle may they not admit against themselves, and against their interest, and the promptings of every motive, a fact which might have been proved by another person with no better knowledge of the facts, and with less of guaranty that his evidence was not distorted by interest, passion, or prejudice? CLIFFORD, J. The indictment in this case was drawn upon the eighth section of the act of Congress of the 30th of April, 1790, which provides, among other things, that if any person or persons shall commit upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular State, murder or robbery, or any other offence which, if committed within the body of a county, would by the laws of the United States be punishable with death, every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and being thereof convicted shall suffer death. The charge is in effect that the prisoners, Peter Williams and Abraham Cox, on the 29th of August, 1857, piratically, feloniously, wilfully, and of their malice aforethought, assaulted and murdered one Quinton D. Smith, an American citizen, on board a certain vessel called the Albion Cooper, upon the high seas and out of the jurisdiction of any particular State, and within the admiralty and maritime jurisdiction of the United States, and within the jurisdiction of this court; and that the prisoners were apprehended and first brought into this district after committing the offence. After verdict and United States v. Williams and Cox. before judgment, the prisoners duly filed two motions for the consideration of the court, one in arrest of judgment, and one for a new trial, upon the ground that improper evidence had been admitted against them, and also upon the ground that the jury had been misdirected in matters of law by the judge who presided at the trial. These motions were argued before this court at a special term held for that purpose on the 15th of March, 1858, and the questions arising under the motions were held under advisement. In stating the conclusions to which we have come, we will follow the order of the argument at the bar, and commence with the motion in arrest of judgment. The only cause assigned in the motion is, that "it does not appear in and by the indictment, upon which the prisoners were tried, that the same was found by a grand jury duly drawn and impanelled." A brief reference to the act of Congress, of the 8th of August, 1846, and to the record in this case, will show that the persons who served as grand jurors, and who found the indictment, were regularly summoned, impanelled, and sworn. The third section of that act provides, that no grand jury shall hereafter be summoned to attend any Circuit or District Court of the United States, unless the judge of such District Court or one of the judges of such Circuit Court shall in his own discretion, or upon a notification of the district attorney that such jury will be needed, order a venire to be issued therefor, provided that nothing herein shall prevent either of said courts in term from directing a grand jury to be summoned and impanelled, whenever in its judgment it may be proper to do so, and at such time as it may direct. It appears by the record in this case, that the Circuit Court met according to adjournment on the 3d of October, 1857, when, on the written. request of the district attorney of the United States for this district, it was ordered by the court that venires issue for the return of twenty-two grand jurors to attend at the United States courtroom in Portland, in the district of Maine, at an adjourned session of said court, there to be holden at ten of the clock in the forenoon of Tuesday, the 3d of November, 1857, from the towns and cities, and in the proportions therein named. And |