"By another restrictive rule of construing penal statutes, if general words follow an enumeration of particular cases, such general words are held to apply only to cases of the same kind as those which are expressly mentioned. By the 14 Geo. 2, C. 1, persons who should steal sheep or any other cattle were deprived of the benefit of clergy. The stealing of any cattle, whether commonable or not commonable, seems to be embraced by these general words, "any other cattle," yet they were looked upon as too loose to create a capital offence. By the 15 George 2, C. 34, the Legislature declared that it was doubtful to what sorts of cattle the former Act extended besides sheep, and enacted and declared that the Act was made to extend to any bull, cow, ox, steer, bullock, heifer, calf, and lamb, as well as sheep, and to no other cattle whatsoever.
"Until the Legislature distinctly specified what cattle were meant to be included, the Judges felt that they could not apply the statute to any other cattle but sheep.
"The Legislature, by the last Act, says that it was not to be extended to horses, pigs, or goats, although all these are cattle.
"3 Bingh., 581.
"2 Dwarris, Statutes, 635."
By the English law, and by the principles of general law, may it please the Court, the offence must be clearly defined—it must be limited, ascertained, fixed. It must be clear to the accuser. It must be clear to the accused. It must be equally clear to the Judge. It must leave him no discretion whereby he can enlarge or alter it. And, may it please the Court, this is the safe and true principle of construction—to give as little as possible to the discretion of the Courts; for it has been well said, that the arbitrary discretion of any man is the law of tyrants. It is always unknown; it is different in different men; it is casual, and depends on constitution, temper, and passion. In the best of us it is oftentimes caprice; in the worst of us it is every vice, folly and passion to which human nature is liable. It is by defining crime clearly that the citizen has his strongest guarantee for his personal safety. Let us see the opinion of perhaps the greatest master that ever touched the subject of jurisprudence—I mean Montesquieu.
"It is determined," he says, "by the laws of China, that whoever shows any disrespect to the Emperor is to be punished with death. As they do not mention in what this disrespect consists, every thing may furnish a pretext to take away a man's life, and to exterminate any family whatsoever.
"If the crime of high treason be indeterminate, this alone is sufficient to make the Government degenerate into arbitrary power."—Montesquieu, Spirit, Book 12, c. 7.
Now, may it please the Court, it is through statutes in which crimes are ill-defined—are not clearly and distinctly designated—that tyrants in every age have been able to crush their victims. Hence, in the noble system of laws that it is your honors' privilege to dispense, safeguards have been put in the strongest degree, and bulwarks have been erected around the life, the liberties, and the rights of the citizen.
Now, what is an "act of hostility"? Suppose these men had gone out with a commission instructing them to go on the seas, to board vessels, and to beat the captains of vessels, and to do no more—to abandon them then, and take to their own ships—would that be an act of piracy? Is it not plain that the law meant piracy or robbery, or any "act of hostility" ejusdem generis, that is, animo furandi? To show that this construction is not forced, your honors will find in the Act of March 3d, 1825 (Dunlop's Laws, p. 723, sect. 6), that a special law was passed for the very purpose of punishing acts of hostility against the United States and its citizens by forcibly attacking and setting upon vessels owned in part or wholly by either of them, with intent to plunder and despoil the owners of moneys, goods, &c., &c. If, therefore, this construction of these words, which I respectfully submit to the Court, has any weight in it, they amount to no more than what has been already decided in Clintock's case—the clear and well-settled principle of law that the commission shall not form a pretext for robbery.
But, may it please the Court, as to the ninth section of the Act, it never was contemplated as applying to organized States. It was an Act which was intended to apply to individuals alone. States are not the subjects of criminal law, nor can you legislate against them; and this has been distinctly decided. If the Confederate States have been guilty of a gross breach of faith in the attempt to withdraw from the Confederation, they may be coerced; but the citizen himself must go unpunished. They are States—recognized by yourselves as States. They are not a collection of piratical hordes; and under such circumstances the law will not apply to the citizen of any of these States who acts fairly and honestly under his commission.