Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/61

 CH. XX.] since the power to punish would necessarily be held to include the power of ascertaining and fixing the definition of the crime. Indeed, there would not seem to be the slightest reason to define the crime at all; for piracy is perfectly well known and understood in the law of nations, though it is often found defined in mere municipal codes. By the law of nations, robbery or forcible depredation upon the sea, animo furandi, is piracy. The common law, too, recognises, and punishes piracy as an offence, not against its own municipal code, but as an offence against the universal law of nations; a pirate being deemed an enemy of the human race. The common law, therefore, deems piracy to be robbery on the sea; that is, the same crime, which it denominates robbery, when committed on land. And if congress had simply declared, that piracy should be punished with death, the crime would have been sufficiently defined. Congress may 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; for that is certain, which, by reference, is made certain. If congress should declare murder a felony, no body would doubt, what was intended by murder. And, indeed, if congress should proceed to declare, that homicide, "with malice aforethought," should be deemed murder, and a felony; there would still be the same necessity