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

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* Dissenting Opinion Livingston
Mr. Justice LIVINGSTON dissented.
In a case affecting life, no apology can be necessary for expressing my dissent from the opinion which has just been delivered.
The only question of any importance in this case is, whether the act of the 3d of March, 1819, be a constitutional exercise of the power delegated to Congress of 'defining and punishing piracies?' The act declares, that any person who shall commit on the high seas the crime of piracy as defined by the law of nations, shall be punished with death. The special power here given to define piracy, can be attributed to no other cause, than to the uncertainty which it was known existed on this subject in the law of nations, and which it must have been the intention of the framers of the constitution to remove, by conferring on the national legislature the power which has been mentioned. It was well known to the members of the Federal Convention, that in treatises on the law of nations, or in some of them at least, definitions of piracy might be found; but it must have been as well known to them that there was not such a coincidence on this subject, as to render a reference to that code a desirable or safe mode of proceeding in a criminal, and espekcially in a capital case. If it had been intended to adopt the definition or definitions of this crime, so far as they were to be collected from the different commentators on this code, with all the uncertainty and difficulty attending a research for that purpose, it might as well at once have been adopted as a standard by the constitution itself. The object, therefore, of referring its definition to Congress was, and could have been no other than, to enable that body, to select from sources it might think proper, and then to declare, and with reasonable precision to define, what act or acts should constitute this crime; and having done so, to annex to it such punishment as might be thought proper. Such a mode of proceeding would be consonant with the universal practice in this country, and with those feelings of humanity which are ever opposed to the putting in jeopardy the life of a fellow-being, unless for the contravention of a rule which has been previously prescribed, and in language so plain and explicit as not to be misunderstood by any one. Can this be the case, or can a crime be said to be defined, even to a common intent, when those who are desirous of information on the subject are referred to a code, without knowing with any certainty, where it is to be found, and from which even those to whom it may be accessible, can with difficulty decide, in many cases, whether a particular act be piracy or not? Although it cannot be denied that some writers on the law of nations do declare what acts are deemed piratical, yet it is certain, that they do not all agree; and if they did, it would seem unreasonable to impose upon that class of men, who are the most liable to commit offences of this description, the task of looking beyond the written law of their own country for a definition of them. If in criminal cases every thing is sufficiently certain, which by reference may be rendered so, which was an argument used at bar, it is not perceived why a reference to the laws of China, or to any other foreign code, would not have answered the purpose quite as well as the one which has been resorted to. It is not certain, that on examination, the crime would not be found to be more accurately defined in the code thus referred to, than in any writer on the law of nations; but the objection to the reference in both cases is the same; that it is the duty of Congress to incorporate into their own statutes a definition in terms, and not to refer the citizens of the United States for rules of conduct to the statutes or laws of any foreign country, with which it is not to be presumed that they are acquainted. Nor does it make any difference in this case, that the law of nations forms part of the law of every civilized country. This may be the case to a certain extent; but as to criminal cases, and as to the offence of piracy in particular, the law of nations could not be supposed of itself to form a rule of action; and, therefore, a reference to it in this instance, must be regarded in the same light, as a reference to any other foreign code. But, it is said, that murder and robbery have been declared to be punishable by the laws of the United States, without an definition of what act or acts shall constitute either of these offences. This may be; but both murder and robbery, with arson, burglary, and some other crimes, are defined by writers on the common law, which is part of the law of every State in the Union, of which, for the most obvious reasons, no one is allowed to allege his ignorance in excuse for any crime he may commit. Nor is there any hardship in this, for the great body of the community have it in their power to become acquainted with the criminal code under which they live; not so when acts which constitute a crime are to be collected from a variety of writers, either in different languages, or under the disadvantage of translations, and from a code with whose provisions even professional men are not always acquainted. By the same clause of the constitution, Congress have power to punish offences against the law of nations, and yet it would hardly be deemed a fair and legitimate execution of this authority, to declare, that all offences against the law of nations, without defining any one of them, should be punished with death. Such mode of legislation is but badly calculated to furnish that precise and accurate information in criminal cases, which it is the duty, and ought to be the object, of every legislature to impart.
Upon the whole, my opinion is, that there is not to be found in the act that definition of piracy which the constitution requires, and that, therefore, judgment on the special verdict ought to be rendered for the prisoner.

## Notes

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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