chapter 41: power to punish piracies and felonies on the high seas
§ 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. 11
§ 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. 15
§ 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. 26
§ 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.