POWER TO PUNISH PIRACIES AND FELONIES.
§ 1152. The next power of congress is, "to
define and punish piracies and felonies committed on the high seas, and offences
against the law of nations."
§ 1153. By the confederation the sole and
exclusive power was given to congress "of appointing courts for the trial
of piracies and felonies committed on the high seas." 1
But there was no power expressly given to define and punish piracies and
felonies. 2 Congress, however, proceeded
to pass an ordinance for the erection of a court for such trials, and prescribed
the punishment of death upon conviction of the offence. 3
But they never undertook to define, what piracies or felonies were. It was taken
for granted, that these were sufficiently known and understood at the common
law; and that resort might, in all such cases, be had to that law, as the
recognised jurisprudence of the Union. 4
§ 1154. If the clause of the constitution
had been confined to piracies, there would not have been any necessity of
conferring the power to define the crime, since the power to punish would
necessarily be held to include the power of ascertaining and fixing the
definition of the crime. Indeed, there would not seem to be the slightest reason
to define the crime at all; for piracy is perfectly well known and understood in
the law of nations, though it is often found defined in mere municipal codes.
6 By the law of nations, robbery or
forcible depredation upon the sea, animo furandi, is piracy. The common
law, too, recognises, and punishes piracy as an offence, not against its own
municipal code, but as an offence against the universal law of nations; a pirate
being deemed an enemy of the human race. 7
The common law, therefore, deems piracy to be robbery on the sea; that is, the
same crime, which it denominates robbery, when committed on land.
8 And if congress had simply declared,
that piracy should be punished with death, the crime would have been
sufficiently defined. Congress may as well define by using a term of a known and
determinate meaning, as by an express enumeration of all the particulars
included in that term; for that is certain, which, by reference, is made
certain. If congress should declare murder a felony, no body would doubt, what
was intended by murder. And, indeed, if congress should proceed to declare, that
homicide, "with malice aforethought," should be deemed murder, and a
felony; there would still be the same necessity of ascertaining, from the common
law, what constituted malice aforethought. So, that there would be no end to
difficulties or definitions; for each successive definition might involve some
terms, which would still require some new explanation. But the true intent of
the constitution in this part, was, not merely to define piracy, as known to the
law of nations, but to enumerate what crimes in the national code should be
deemed piracies. And so the power has been practically expounded by congress.
§ 1155. But the power is not merely to
define and punish piracies, but
felonies, and offences against the law of nations; and
on this account, the power to define, as well as to punish, is peculiarly
appropriate. It has been remarked, that felony is a term of loose signification,
even in the common law; and of various import in the statute law of England.
12 Mr. Justice Blackstone says, that felony, in the general
acceptation of the English law, comprises every species of crime, which
occasioned at common law the forfeiture of lands and goods. This most frequently
happens in those crimes, for which a capital punishment either is, or was liable
to be inflicted. All offences now capital by the English law are felonies; but
there are still some offences, not capital, which are yet felonies, (such as
suicide, petty larceny, and homicide by chance medley; 13)
that is, they subject the committers of them to some forfeiture, either of lands
or goods. 14 But the idea of capital
punishment has now become so associated, in the English law, with the idea of
felony, that if an act of parliament makes a new offence felony, the law
implies, that it shall be punished with death, as well as with forfeiture.
§ 1156. Lord Coke has given a somewhat
different account of the meaning of felony; for he says "ex vi termini
significat quodlibet capitale crimen felleo animo perpetratum;" (that
is, it signifies every capital offence committed with a felonious intent;) "in
which sense murder is said to be done per feloniam, and is so
appropriated by law, as that
felonice cannot be expressed by any other word. 16
This has been treated as a fanciful derivation, and not as correct, as that of
Mr. J. Blackstone, who has followed out that of Spelman. 17
§ 1157. But whatever may be the true import
of the word felony at the common law, with reference to municipal offences, in
relation to offences on the high seas, its meaning is necessarily somewhat
indeterminate; since the term is not used in the criminal jurisprudence of the
Admiralty in the technical sense of the common law. 18
Lord Coke long ago stated, that a pardon of felonies would not pardon piracy,
for "piracy or robbery on the high seas was no felony, whereof the common
law took any knowledge, &c.; but was only punishable by the civil law, &c.;
the attainder by which law wrought no forfeiture of lands or corruption of
blood." 19 And he added, that the
statute of 98 Henry 8, ch. 15, which created the High Commission Court for the
trial of "all treasons, felonies, robberies, murders, and confederacies,
committed in or upon the high sea, &c.," did not alter the offence, or
make the offence felony, but left the offence as it was before the act, viz.
felony only by the civil law. 20
§ 1158. Offences against the law of nations
are quite as important, and cannot with any accuracy be said to be completely
ascertained, and defined in any public code, recognized by the common consent of
nations. In respect, therefore, as well to felonies on the high seas, as to
offences against the law of nations, there is a peculiar fitness in giving to
congress the power to define, as well as to punish. And there is not the
slightest reason to doubt, that this consideration had very great weight with
the convention, in producing the phraseology of the clause. 21
On either subject it would have been inconvenient, if not impracticable, to have
referred to the codes of the states, as well from their imperfection, as their
different enumeration of the offences. Certainty, as well as uniformity,
required, that the power to define and punish should reach over the whole of
these classes of offences. 22
§ 1159. What is the meaning of "high
seas" within the intent of this clause does not seem to admit of any
serious doubt. The phrase embraces not only the waters of the ocean, which are
out of sight of land, but the waters on the sea coast below low water mark,
whether within the territorial boundaries of a foreign nation, or of a domestic
state. 23 Mr. Justice Blackstone has
remarked, that the main sea or high sea begins at the low water mark.
But between the high water mark and the low water mark, where the tide ebbs and
flows, the common law and the admiralty have divisum imperium, an
alternate jurisdiction, one upon the water, when it is at full sea; the other
upon the land, when it is at an ebb. 24
He doubtless here refers to the waters of the ocean on the sea-coast, and not in
creeks and inlets. Lord Hale says, that the sea is either that, which lies
within the body of a country or without. That, which lies without the body of a
country, is called the main sea, or ocean. 25
So far, then, as regards the states of the Union, "high seas" may be
taken to mean that part of the ocean, which washes the sea-coast, and is without
the body of any county [sic], according to the common law; and, so far as
regards foreign nations, any waters on their sea-coast, below low-water mark.
§ 1160. Upon the propriety of granting this
power to the national government, there does not seem to have been any
controversy; or if any, none of a serious nature. It is obvious, that this power
has an intimate connexion and relation with the power to regulate commerce and
intercourse with foreign nations, and the rights and duties of the national
government in peace and war, arising out of the law of nations. As the United
States are responsible to foreign governments for all violations of the law of
nations, and as the welfare of the Union is essentially connected with the
conduct of our citizens in regard to foreign nations, congress ought to possess
the power to define and punish all such offences, which may interrupt our
intercourse and harmony with, and our duties to them. 27
§ 1161. Whether this power, so far as it
concerns the law of nations, is an exclusive one, has been doubted by a learned
commentator. 28 As, up to the present
time, that question may be deemed for most purposes to be a mere speculative
question, it is not proposed to discuss it, since it may be better reasoned out,
when it shall require judicial decision.
§ 1162. The clause, as it was originally
reported in the first draft of the constitution, was in substance, though not in
language, as it now stands. It was subsequently amended; and in the second draft
stood in its present terms. 29 There is,
however, in the Supplement to the Journal, an obscure statement of a question
put, to strike out the word "punish," seeming to refer to this clause,
which was carried in the affirmative by the vote of six states against five.
30 Yet the constitution itself bears
testimony, that it did not prevail.
1. Art. 9.
2. The Federalist, No. 42.
3. See Ordinance for trial of piracies
and felonies, 5th April, 1781; 7 Journ. Cong. 76.
4. A motion was made in Congress to
amend the articles of confederation, by inserting in lien of the words, as they
stand in the instrument, the following, "declaring what acts committed on
the high seas shall be deemed piracies and felonies. It was negatived by the
vote of nine states against two. The reason, probably, was the extreme
reluctance of congress to admit any amendment after the project had been
submitted to the states. 5
5. 1 Secret Journals of Congress 384,
June 25, 1778.
6. The Federalist, No. 42; Rawle on
Coast. ch. 9. p. 107; 2 Elliot's Debates, 389, 390.
7. 4 Black. Comm. 71 to 73.
8. Mr. East says, "The offence of
piracy, by the common law, consists in committing those acts of robbery and
depredation upon the high seas, which, if committed upon land, would have
amounted to felony there." 9 In
giving this definition he has done no more than follow the language of preceding
writers on the common law. 10
9. 2 East, P. C. 796.
10. 4 Black. Comm. 71 to 73.
11. United States v. Smith, 5
Wheat R. 153, 158 to 163.
12. The Federalist, No. 42; 2 Elliot's
Deb. 389, 390.
13. Co. Litt. 391.
14. 4 Black. Comm. 93 to 98.
15. 4 Black. Comm. 98; See also 1 Hawk.
P.C. ch. 37, (Curwood's Edit. ch. 7.)
16. Co. Litt. 391; 1 Hawk. P.C. ch. 37.
17. See 1 Curwood's Hawk. P.C. ch. 7,
note p, 71.
18. United States v. Smith, 5
Wheat. R. 153, 159.
19. 3 Inst. 112.
20. 3 Inst. 112; Co. Lect. 391, a.
21. United States v. Smith, 5
Wheat. R. 153, 159.
22. The Federalist, No. 42; Sergeant on
Const. ch. 28, (ch. 30;) Rawle on Const. ch. 9, p. 107.
23. United Stales v. Pirates, 5
Wheat. R. 184, 200, 204, 206; United States v. Willberger, 5 Wheat. R.
24. 1 Black. Comm. 110; Constable's
case, 5 Co. R. 106; 3 Inst. 113; 2 East's P.C. 802, 803.
25. Hale in Harg. Law Tracts, ch. 4, p.
10; 1 Hale P.C. 423, 494.
26. See Rawle on the Const. ch. 9, p.
107; Sergeant on the Const. ch. 28, [ch. 30;] 1 Kent's Comm. Lect. 17, p. 342, &e.;
United States v. Grush, 5 Mason's R. 290.
27. See 1 Tucker's Black. Comm. App.
268, 269; Rawle on Coast. ch. 9, p. 108.
28. Rawle on Const. ch. 9, p. 108.
29. Journal of Convention, 221, 257 to
30. Journal of Convention, p. 375, 376.
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