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for punishing the crime as it is recognized by the universal brotherhood of civilized states. Indeed, the case of United States v. Smith, 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 the operation of the municipal criminal code. It is for this reason that Congress is enabled not only to punish, but to de fine 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. Lord Stowell thus decided in a very carefully considered case. The Supreme Court of the United States has announced the same doctrine. But the United States may, by special statute, declare, as it, 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

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 wver 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 considera

1 Diplomatie de la Mer, liv. 1. 218.
9 The Louis, '2 Dobson Adm. 210.
s The Antelope, 10 Wheat. 66.


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tion. 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 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.

$ 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,2 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 | The Hine, 4 Wall. 555.

2 5 Wheat. 76.



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 ; ? although in DeLovio v. Boit, while speaking of the extent of 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, 1 5 Mas. 290.

2 1 Gallis. 624. 2 Gallis. 398, 427. 428. See also United States v. Bevans, 3 Wheat. 336; United States v. Furlong, 5 Wheat. 134; United States v. Holmes, 5 Wheat. 412.


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 liinit beyond which neither the legislature nor the courts can pass. It was borrowed substantially from an ancient statute enacted in the reign of Edward III., and was intended to destroy forever all opportunity for legislative or judicial extension of the orime so as to cover what are known as constructive treasons. By incorporating the definition in the organic law, the future as well as the present is secured, and the liberties of the people are preserved from one of the most terrible instruments of oppression ever wielded by rulers maddened through fear, and drunk with the excess

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Treason presupposes allegiance, which is due from citizens permanently, and from all others 'temporarily while they are within the territory and under the protection of the laws. Aliens may, therefore, under the conditions mentioned, be guilty of the crime. As the allegiance is owing not to the rulers personally but to the nation, treason is an offence against the United States, and consists of acts done, in violation of this allegiance, against its integrity, independence, or existence.

§ 433. The Constitution mentions 'two classes of acts, and two only, which may constitute the crime: (1.) Levying war against the United States; and, (2.) Adhering to the enemies of the United States, giving them aid and comfort. As the

' offence is so aggravated, and its consequences so terrible, more than ordinary certainty is required in the proof necessary to establish guilt; 'two witnesses must 'testify to the same overt act, or the accused must confess in open court. These provisions taken together require an overt, or open, act of levying war, or an open act of adherence to the nation's enemies, giving them aid and comfort; without one or the other there can

be no treason. No mere words can, therefore, amount to treason ; no mere conspiring, confederating, planning, can make men traitors; for none of these acts are overt. The English statute adds a third case, - compassing the death of the king; and this element of the crime may consist in simple conspiring and confederating. But it is not treasonable to compass the death of the President, or even to accomplish the design and take his life.

$ 434. The common law punishment for treason was death in a most terrible form; the offender was to be drawn to the gallows; hung by the neck, and cut down alive; his bowels were to be taken out while he was alive, and burned; he was then to be beheaded and his body quartered. It was well that Congress should have express power to fix the penalty, and to abandon this horrible relic of a barbarous age. The power has been exercised by declaring death by hanging to be the punishment. The common law also annexed other penalties to the crime of treason, corruption of blood, and forfeiture of the estate of the attainted offender. Corruption of blood was

, the destruction of all inheritable qualities in the person; so that he could neither succeed as heir to any lands which might otherwise have come to him by descent, nor could other persons inherit from or through him. As the source, as the channel, and as the end of descent, his capacity was utterly gone. Upon conviction he also forfeited his lands from the time when the treasonable act was committed, and his goods and chattels from the time of the conviction. These rules of the law, visiting severe penalties upon the innocent, were supposed to have a strong moral effect in deterring persons from crimes which would thus bring ruin upon their families.

§ 435. The Constitution has abandoned these ideas and the rules which they suggested. No attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. The “attainder" here spoken of is a judicial conviction of the crime. Bills of attainder were known to the English law, and were legislative convictions ; they are forbidden by express provisions of the Constitution, and the only attainder possible in the United States is a judg

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