that of the United States; and that it sought only to enforce a public duty more effectually by other penalties, in aid of those prescribed by congress. The repugnancy of such a state law to the national authority would, nevertheless, be manifest, since it would seek to punish an offence created by congress, differently from the declared will of congress. And the repugnancy is not, in my judgment, less manifest where the state law undertakes to punish an offence by a state court martial, which the law of the United States confines to the jurisdiction of a national court martial.

The present case has been illustrated, in the argument of the defendant's counsel, by reference to cases in which state courts under state laws exercise a concurrent jurisdiction over offences created and punished by the laws of the United States. The only case of this description which has been cited at the bar is the forgery of notes of the Bank of the United States, which by an act of congress was punished by fine and imprisonment, and which under state laws has also been punished in some state courts, and particularly in Pennsylvania.* In respect to this case, it is to be recollected, that there is an express proviso in the act of congress, that nothing in that act should be construed to deprive the state courts of their jurisdiction, under the state laws, over the offences declared punishable by that act. There is no such proviso in the act of 1795, and, therefore, there is no complete analogy to support the illustration.

That there are cases in which an offence particularly aimed against the laws or authority of the United States may, at the same time, be directed against state authority also, and thus be within the legitimate reach of state legislation, in the absence of national legislation on the same subject, I pretend not to affirm, or to deny. It will be sufficient to meet such a case when it shall arise. But that an offence against the constitutional authority

*See White v. Commonwealth, 4 Binney's Reports, 418. Livingston v. Van Ingen, 9 Johnstone's Reports, 507, 567.

of the United States can, after the national legislature has provided for its trial and punishment, be cognizable in a state court, in virtue of a state law creating a like offence, and defining its punishment, without the consent of congress, I am very far from being ready to admit. It seems to me, that such an exercise of state authority is completely open to the great objections which are presented in the case before us. Take the case of a capital offence, as, for instance, treason against the United States; can a state legislature vest its own courts with jurisdiction over such an offence, and punish it either capitally or otherwise? Can the national courts be ousted of their jurisdiction by a trial of the offender in a state court? Would an acquittal in a state court be a good bar upon an indictment for the offence in the national courts? Can the offender, against the letter of the constitution of the United States, "be subject, for the same offence, to be twice put in jeopardy of life or limb?" These are questions which, it seems to me, are exceedingly diffi cult to answer in the affirmative. The case, then, put by the defendant's counsel, clears away none of the embarrassments which surround their construction of the case at the bar of the court.

Upon the whole, with whatever reluctance, I feel myself bound to declare that the clauses of the militia act of Pennsylvania now in question are repugnant to the constitutional laws of congress on the same subject, and are utterly void; and that, therefore, the judgment of the state court ought to be reversed. In this opinion I have the concurrence of one of my brethren.

Judgment affirmed.

5 Wh. 75.

THE UNITED STATES v. SMITH.

FEBRUARY TERM, 1820.

[5 Wheaton's Reports, 153-183.]

Thomas Smith and others, part of the crew of a Buenos Ayrean privateer, mutinied, and left their own vessel while lying in the port of Margarita, seized another privateer in the harbor; chose officers from among themselves; put to sea, without documents or commission; and took and robbed a Spanish vessel on the high seas. Smith was indicted in the circuit court for the district of Virginia; and the judges being opposed in opinion respecting his crime having been piracy, under the constitution of the United States, the question was certified to the supreme court; the opinion of which was delivered by Judge Story:

The act of congress upon which this indictment is founded provides, "that, if any person or persons whatsoever, shall upon the high seas commit the crime of piracy, as defined by the law of nations, and such offender or offenders shall be brought into, or found in, the United States, every such offender or offenders shall, upon conviction thereof, &c., be punished with death."

The first point made at the bar is, whether this enactment be a constitutional exercise of the authority delegated to congress upon the subject of piracies. The constitution declares that congress shall have power to "define and punish piracies and felonies committed on the high seas, and offences against the law of nations." The argument which has been urged in behalf of the prisoner is, that congress is bound to define, in terms, the offence of piracy, and is not at liberty to leave it to be ascertained by judicial interpretation. If the argument be well founded, it seems admitted by the counsel that it equally applies. to the eighth section of the act of congress of 1790, (chapter 9,) which declares that robbery and murder committed on the high seas shall be deemed piracy; and yet, notwithstanding a series

of contested adjudications on this section, no doubt has hitherto been breathed of its conformity to the constitution.

In our judgment the construction contended for proceeds upon too narrow a view of the language of the constitution. The power given to congress is not merely "to define and punish piracies;" if it were, the words "to define " would seem almost superfluous, since the power to punish piracies would be held to include the power of ascertaining and fixing the definition of the crime. And it has been very justly observed, in a celebrated commentary, that the definition of piracies might have been left without inconvenience to the law of nations, though a legislative definition of them is to be found in most municipal codes.* But the power is also given "to define and punish felonies on the high seas, and offences against the law of nations." The term "felonies" has been supposed, in the same work, not to have a very exact and determinate meaning in relation to cffences at the common law committed within the body of a county. However this may be, in relation to offences on the high seas, it 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. Offences, too, against the law of nations, cannot, with any accuracy, be said to be completely ascertained and defined in any public code recognized by the common consent of nations. In 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 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 in producing the phraseology in question.

But supposing congress were bound, in all the cases included in the clause under consideration, to define the offence, still there is nothing which restricts it to a mere logical enumeration in detail of all the facts constituting the offence. Congress may

*The Federalist, No. 42, page 276.

† See 3 Inst. 112; Hawk. P. C. chap. 37; Moore, 576.

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. That is certain which is by necessary reference made certain. When the act of 1790 declares that any person who shall commit the crime of robbery, or murder, on the high seas, shall be deemed a pirate, the crime is not less clearly ascer tained than it would be by using the definitions of these terms as they are found in our treatises of the common law. In fact, by such a reference, the definitions are necessarily included, as much as if they stood in the text of the act. In respect to murder, where "malice aforethought" is of the essence of the offence, even if the common law definition were quoted in express terms, we should still be driven to deny that the definition was perfect, since the meaning of "malice aforethought" would remain to be gathered from the common law. There would then be no end to our difficulties, or our definitions, for each would involve some terms which might still require some new explanation. Such a construction of the constitution is, therefore, wholly inadmissible. To define piracies, in the sense of the constitution, is merely to enumerate the crimes which shall constitute piracy; and this may be done either by a reference to crimes having a technical name an 1 determinate extent, or by enumerating the acts in detail upon which the punishment is inflicted.

It is next to be considered, whether the crime of piracy is defined by the law of nations with reasonable certainty. What the law of nations on this subject is may be ascertained by consulting the works of jurists writing professedly on public law; or by the general usage and practice of nations; or by judicial decisicus recognizing and enforcing that law. There is scarcely a writer on the law of nations, who does not allude to piracy as a crime of a settled and determinate 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. The same doctrine is held by all the great writers on maritime law, in terms that admit of no