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§ 561. 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."

562. 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. 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. 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. 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 constitutes 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. The true intent of the constitution in this clause, is not merely to define piracy, as known to the law of nations, but to enumerate what crimes in the national code shall be deemed piracies. And so the power has been practically expounded by congress.


§ 563. 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. 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 ;) that is, they subject the committers of them to some forfeiture, either of lands or goods. 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.

§ 564. But whatever may be the true import of the word felony at the common law, in regard to municipal offences, its meaning, in regard to offences on the high seas, 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. 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." And he added, that the statute of 28 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.


§ 565. 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, recognised by the common consent of nations. 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. On both subjects 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.

§ 566. 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. 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 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 full sea; the other upon the land, when it is an ebb. 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 the county, or without. That, which lies without the body of a county, is called the main sea, or ocean. 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, according to the common law; and, so far as regards foreign nations, any waters on their sea-coast, below low water mark.




§ 567. THE next power of congress is to "declare "war, grant letters of marque and reprisal, and make "rules concerning captures on land and water."

§ 568. A similar exclusive power was given to congress by the confederation. That such a power ought to exist in the national government, no one will deny, who believes, that it ought to have any powers whatsoever, either for offence or defence, for the common good, or for the common protection. It is, therefore, wholly superfluous to reason out the propriety of granting the power. It is self-evident, unless the national government is to be a mere mockery and shadow. The power could not be left without extreme mischief, if not absolute ruin, to the separate authority of the several states; for then it would be at the option of any one to involve the whole in the calamities and burthens of warfare. In the general government it is safe, because war can be declared only by the majority of the states, in congress.

§ 569. The only practical question upon this subject would seem to be, to what department of the national government it would be most wise and safe to confide this high prerogative, emphatically called the last resort of sovereigns, ultima ratio regum. In Great Britain it is the exclusive prerogative of the crown; and in other countries, it is usually, if not universally, confided to the executive department. It might by the constitu

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