§ 423. For these reasons, to maintain a condition of peace, to do justice to other nations, to restrain the unlawful proceedings of its own citizens and inhabitants, the grant of power to define and punish offences against the law of nations was not only convenient but necessary. The grant is full and comprehensive, and any measures may be adopted under it which are demanded by the exigencies of our international obligations. An illustration of such measures is found in the "neutrality laws," so called, which forbid the fitting out and equipping armed vessels, or the enlisting of troops, for either of two belligerents, with whom the United States is at peace; and in the laws which prevent the organizing within the country of armed expeditions against friendly nations. § 424. Piracy is a word having a twofold legal aspect. It is an offence against the international law, and may be made also an offence against the municipal law. So far as piracy is an offence known to the law of nations, it is an universal principle of that law, that every state has jurisdiction over pirates, to arrest and punish them, no matter of what countries they are natives or citizens, and no matter where or against whom the offence was committed. The theoretical basis of this common jurisdiction is, that pirates have no nation; their crimes have denationalized them; they are said to be, not in a figure, but in reality, enemies of mankind, hostes gentium, at war with the whole human race. These principles apply, however, only to piracy according to the law of nations. It is important to inquire, therefore, What does the International Law declare to be piracy, and whom to be pirates? § 425. A late French writer has thus graphically described the crime and the criminals: In general, pirates are those who rove the seas, under no national authority, but only under their own, to commit thereon acts of depradation, pillaging by main force, either in time of peace or of war, the ships of all nations, without making any other distinction than that which their own convenience or safety may suggest. The criminal acts committed by such desperadoes constitute the crime of piracy. Pirates, therefore, on the seas, resemble organized bands of 1 Ortolan, Diplomatie de la Mer, Liv. II. Ch. XI. highwaymen on the land; only, pirates choosing for the theatre of their crimes a neutral sea, a place common to all mankind, and attacking, indiscriminately, all nations, their trade is even yet more dangerous to humanity. The English and American courts have had frequent occa sion to define this crime, and their definitions will be found more condensed and precise than the description just quoted from the French writer. Thus in England it has been declared that, "Piracy is an assault upon vessels navigated on the high seas, committed animo furandi, whether the robbery or forcible depradation be effected or not, or whether or not it be accompanied by murder or personal injury. If a ship belonging to an independent nation, and not a professed buccanier, practices such conduct on the high seas, she is liable to the pains and penalties of piracy." Several cases of piracy came before the Supreme Court at an early day, the most important and leading of which was The United States v. Smith.2 In their judgment the court observed: "There is scarcely a writer on the Law of Nations who does not allude to piracy as a crime of settled and determined nature; and, whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery or forcible depredations upon the sea animo furandi, is piracy." § 426. The United States has, therefore, full power, either under the clause relating expressly to piracies, or under that referring to offences against the law of nations, to provide for punishing the crime as it is recognized by the universal brotherhood of civilized states. Indeed, the case of United States v. Smith,2 decided that a statute of Congress providing for the punishment of any person who "shall commit the crime of piracy as defined by the law of nations," was a valid exercise of the general power conferred by the Constitution. § 427. But the authority of the legislature extends much farther. Many other acts done on the sea, which do not fall within the definition of piracy by the international law, may be made piracy by particular statutes, and thus brought under 1 1 Phillimore on Intern. Law, p. 379. 25 Wheaton's R. 153. the operation of the municipal criminal code. It is for this reason that Congress is enabled not only to punish, but to define piracies. Thus it is settled by publicists and by courts that the slave trade is not piracy according to the law of nations. Ortolan is of this opinion.1 Lord Stowell thus decided in a very carefully considered case.2 The Supreme Court of the United States has announced the same doctrine. But the United States may, by special statute, declare, as she, Great Britain, and many other countries have declared, the slave trade to be piracy, and may apportion such punishments as are thought expedient, to the persons engaged in the nefarious traffic. Again; privateering has long been recognized as lawful by the international law; but Congress may certainly enact laws by which those engaged in this species of hostilities shall, under the circumstances described, become subject to the pains and penalties of piracy. § 428. The remaining class of offences embraced within this particular grant of power, are felonies committed on the high seas. As Congress may exercise an exclusive control over the foreign commerce of the country, it seems not only proper but necessary that the general government should have jurisdiction over crimes committed on the highway of that commerce. The power of the legislature over this subject is not, however, confined to the cases mentioned in the clause under consideration. The grant contained in Article III. Section II. which extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction, greatly enlarges the functions of Congress, and enables it to define and punish crimes committed within the admiralty jurisdiction, although not upon the high seas. There has been much dispute as to the extent of the admiralty jurisdiction recognized by the Constitution. Some have asserted that it is confined to waters in which the tide ebbs and flows without the territorial limits of a county; others have claimed that it is co-extensive with the ebb and flow of the tide although within those limits. This question 1 Diplomatie de la Mer, Liv. 1, p. 213. will be more particularly examined hereafter; it is enough now to say, that the Supreme Court has finally and authoritatively settled the doctrine that the admiralty jurisdiction extends not only to all tide waters, but also to the great inland lakes and navigable rivers which are tideless.1 $429. The criminal legislation of Congress in respect to offences committed upon the sea, must, therefore, be referred to two grants of power, that to define and punish felonies. committed on the high seas; and that conferring admiralty jurisdiction. The cases which have been decided have rather turned upon the language of statutes, than upon the meaning and force of the constitutional provisions. It may be considered as settled, however, that the "high seas" referred to in the eighth section of the first article, include only those tide waters without the territorial limits of the country, in contradistinction to those portions of the sea infra fauces terræ, such as tidal rivers, bays, harbors, and the like. In 1790 Congress passed a crimes act, which provided, among other things, for the punishment of any person who shall commit murder or robbery, " upon the high seas, or in any river, haven, basin, or bay out of the jurisdiction of any particular state;" and also of any person who shall "commit manslaughter upon the high seas." In the United States v. Wiltberger, a case arising under this statute came before the Supreme Court. The defendant was indicted for a manslaughter committed by him on board an American ship while lying in the river Tigris, in China, below the low water mark, about thirty-five miles from the mouth, but where the tide ebbed and flowed. The court held that the offence was not within the language of the statute, because the place of its commission was not upon the high seas, and the law made no provision for a manslaughter done in a river, haven, basin, or bay. Mr. Justice Story gave the same definition of the term in The United States v. Grush, and in the United States v. Ross; 4 although in DeLovio v. Boit,5 while speaking of the extent of 1 The Hine, 4 Wallace's R. 555. 3 5 Mason's R. 290. 25 Wheaton's R. 76. 4 1 Gallison's R. 624. 5 2 Gallison's R. 398, 427, 428. See also, United States v. Bevans, 3 admiralty jurisdiction, he included a roadstead or bay within the "high seas." § 430. The conclusion would seem to be, that, under the authority conferred in Article I. Section VIII., Congress may pass statutes which define, and provide for the punishment of, felonies committed upon the tidal waters outside the territorial limits of any country; and that, under the judicial power over admiralty matters, in connection with the last paragraph of the eighth section of Article I., Congress may pass laws which define, and provide for the punishment of, offences done on tidal waters even within the territorial limits of a country, so far as the criminal jurisdiction of the admiralty extends. III. Treason against the United States. § 431. It was most proper that Congress should be clothed with authority to declare the punishment of treason; indeed, in the absence of any express provision on the subject, there could be no doubt of the power of the government to define treason and punish traitors. As the people of the United States is one body politic possessing inherent sovereignty, and as the Constitution and the government established thereby, is the highest expression of that sovereignty, it could not, for a moment, be admitted, that the very crime of all crimes, the crime against the supremacy and life of the nation, should, under any circumstances, go unpunished. The provision in the Constitution is, therefore, in a certain sense, superfluous; it is rather a limitation upon, than a grant of, governmental power. § 432. I do not propose to go into any examination of the law of treason; such an attempt would be entirely foreign to the objects of this work. The constitutional provision defining the crime was inserted as a safeguard of the rights and liberties of the citizen. It places a limit beyond which neither the legislature nor the courts can pass. It was borrowed substantially from an ancient statute enacted in the reign of Edward Wheaton's R. 336; United States v. Furlong, 5 Wheaton's R. 134; United States v. Holmes, 5 Wheaton's R. 412. |