# United States v. Smith (18 U.S. 153)

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5 L.Ed. 57

## Dissenting Opinion

    Livingston
United States Supreme Court
18 U.S. 153
United States v. Thomas Smith
THIS was an indictment for piracy against the prisoner Thomas Smith, before the Circuit Court of Virginia, on the act of Congress, of the 3d of March, 1819, c. 76.
The jury found a special verdict as follows: "We, of the jury, find, that the prisoner, Thomas Smith, in the month of March, 1819, and others, were part of the crew of a private armed vessel, called the Creollo, (commissioned by the government of Buenos Ayres, a colony then at war with Spain,) and lying in the port of Margaritta; that in the month of March, 1819, the said prisoner and others of the crew mutinied, confined their officer, left the vessel, and in the said port of Margaritta, seized by violence a vessel called the Irresistible, a private armed vessel, lying in that port, commissioned by the government of Artigas, who was also at war with Spain; that the said prisoner and others, having so possessed themselves of the said vessel, the Irresistible, appointed their officers, proceeded to sea on a cruize, without any documents or commission whatever; and while on that cruise, in the month of April, 1819, on the high seas, committed the offence charged in the indictment, by the plunder and robbery of the Spanish vessel therein mentioned. If the plunder and robbery aforesaid be piracy under the act of the Congress of the United States, entitled, 'An act to protect the commerce of the United States, and punish the crime of piracy,' then we find the said prisoner guilty; if the plunder and robbery above started, be not piracy under the said act of Congress, then we find him not guilty."
The Circuit Court divided on the question whether this be piracy as defined by the law of nations, so as to he punishable under the act of Congress, of the 3d of March, 1819, and thereupon the question was certified to this court for its decision.
Feb. 21st.
The Attorney General, for the United States, contended, that Congress, by referring to the law of nations for a definition of the crime of piracy, had duly exercised the power given them by the constitution, 'to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.' By this reference they adopt the definition of the offence given by the writers on public law. All these writers concur in defining it to be, depredation on the seas, without the authority of a commission, or beyond its authority.If there be any defect of precision or slight uncertainty in the definitions of the crime of piracy given by different writers on the law of nations, it is no more than what is to be found in common law writers on the crime of murder. Yet we are constantly referred by the legislature to the common law for the definition of murder and other felonies which are mentioned in statutory provisions. But there is no defect in the definition of piracy by the authorities to which we are referred by this act. The definition given by them is certain, consistent, and unanimous; and pirates being hostes humani generis, are punishable in the tribunals of all nations. All nations are engaged in a league against them for the mutual defence and safety of all. This renders it the more fit and proper that there should be a uniform rule as to the definition of the crime, which can only be drawn from the law of nations, as the only code universally known and recognized by the people of all countries.
Mr. Webster, contra, argued, that the special verdict did not contain sufficient facts to enable the Court to pronounce the prisoner guilty of the offence charged. The facts found, do not necessarily infer his guilt, but, on the contrary, are consistent with his innocence; inasmuch as it appears that he was one of the crew of a vessel belonging to Buenos Ayres, although not acting at the time when the supposed offence was committed under the commission of that colony, but acting as a non-commissioned captor, and as such, seizing the property of Spanish subjects on the high seas. But even supposing the offence to be well found by the special verdict, it cannot be punished under this act, because the law is not a constitutional exercise of the power of Congress to define the crime of piracy. Congress is bound to define it in terms, and is not at liberty to leave it to be ascertained by judicial interpretation. To refer to the law of nations for a definition of the crime, is not a definition; for the very thing to be ascertained by the definition, is the law of nations on the subject. The constitution evidently presupposes that this crime, and other offences committed on the high seas, were not defined with sufficient precisich by the law of nations, or any other law, to form a rule of conduct; or it would merely have given Congress the power of punishing these offences, without also imposing upon it the duty of defining them. The writers on public law do not define the crime of piracy with precision and certainty. It was this very defect which rendered it necessary that Congress should define, in terms, before it proceeded to exercise the power of punishing the offence. Congress must define it as the constitution has defined treason, not by referring to the law of nations in one case, or to the common law in the other, but by giving a distinct, intelligible explanation of the nature of the offence in the act itself.
Feb. 25th.
Mr. Justice STORY delivered the opinion of the court.

## Notes

* ↑ Which provides, (s. 5.) 'That if any person or persons whatsoever, shall, on the high seas, commit the crime of piracy, as defined by the law of nations, and such offender or offenders shall afterwards be brought into, or found in, the United States, every such offender or offenders shall, upon conviction thereof, before the Circuit Court of the United States for the District into which he or they may be brought, or in which he or they shall be found, be punished with death.'
* ↑ Grotius de J. B. ac. P. l. 2. c. 15. s. 5. Puffendorf, l. 2. c. 2. s. 10. Vattel, Droit des Gens, l. 3. c. 15. s. 226. Bynk. Q. J. Pub. l. 1.Duponceau's Trans. p. 127. Marten's Hist. of Privateers, p. 2. Horne's Transl. Molloy, b. 1., c. 4. s. 5. 2 Bro. Civ. and Adm. Law, 461. 2 Azuni, 351. Johns. Transl. and the authorities there cited.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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