Punishing Pirates and the Law of Nations – Constitution Article 1 §8.10

Article 1 §8.10 of the Constitution is about Congress’ power to punish piracy. Pirates are always good reading, but that’s not why I’m studying 1 §8.10.

In episode 8 of the wonderful anime Kino’s Journey, a character wanders into a country where people live in peace and freedom and are welcoming to newcomers. His companion says it seems like a perfectly normal place. He replies, “A lot of people have to work very hard to make a place normal.”

Democracy is not for spectators; it takes a lot of work from a lot of people. To do it right, you have to know the rules. That’s why I’m studying the Constitution, one clause at a time. I’m up to Article 1 §8.10.

Punishing Pirates

Article 1 §8.10

Congress shall have the power

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

The Law of Nations

The Law of Nations is a legal treatise (1758) by Emerich de Vattel that fairly described the consensus of the time on what constituted international law and the proper behavior of nations in the global community. But it was more like guidelines and the Framers wanted specificity, so they added “define” to the clause.

Not only would Congress be responsible for punishing offenses against international law, they would define the crimes. But they weren’t going to spend all their time developing a code of international law. In 1820 the dully named United States v. Smith established that people usually know piracy when they see it.

Along the same lines, to quote the Annotated Constitution on United States v. Arjona (1887):

the duty which the law of nations casts upon every government to prevent a wrong being done within its own dominion to another nation with which it is at peace, or to the people thereof, was found to furnish a sufficient justification for the punishment of the counterfeiting within the United States, of notes, bonds, and other securities of foreign governments.

Territorial Limitations

Anyone who has ever watched a video knows that copyright infringement is a form of piracy. But we learned in 1 §8.8 that U.S. copyright doesn’t apply in other countries. Microsoft Corp. v. AT&T (2007), reinforced the “presumption that United States law governs domestically but does not rule the world…” Two clauses later, the story is less clear. This clause contains the only specific grant of power in the Constitution for the punishment of offenses outside the territorial limits of the United States. Of course there is case law on it, and like 1 §8.9, it seems to be strongly related to Article 3. After some legal back and forth, United States v. Flores (1933) seemed to settle the matter.

To construe the one clause [in Article 3] as limiting rather than supplementing the other [this one or vice versa] would be to ignore their history, and without effecting any discernible purpose of their enactment, to deny to both the states and the National Government powers which were common attributes of sovereignty before the adoption of the Constitution. The result would be to deny to both the power to define and punish crimes of less gravity than felonies committed on vessels of the United States while on the high seas, and crimes of every grade committed on them while in foreign territorial waters.

So basically, somebody’s got to keep order and it might as well be Congress.

What about pirates?

I’m so disappointed. This clause seemed so rich in possibility but didn’t seem to deliver much in the way of pirates. The full story of U.S. v. Smith would make a wonderful historical novel or narrative nonfiction book, though.

The full story … is complicated, involving multiple ships, multiple parties, multiple versions of events, and (by the end of the tale) all strata of society from pressed seamen to leading citizens of Baltimore and Richmond to the President of the United States and his cabinet members.

Maybe someday I’ll write it.