Sudden mutations in morals,
are not to be made by a dash of the pen; and even public sentiment can
hardly be made to consider slaving much of a crime, in a slave-holding
community. But, even the punishment of death might be inflicted, without
arrogating to Congress a power to say what is, and what is not, piracy.
It will probably be said, the error is merely one of language; the
jurisdiction being clearly legal. Is this true? Can Congress, legally or
constitutionally, legislate for American citizens, when undeniably within
the jurisdiction of foreign states? Admit this as a principle, and what is
to prevent Congress from punishing acts, that it may be the policy of
foreign countries to exact from even casual residents. If Congress can
punish me, as a pirate, for slaving under a foreign flag, and in foreign
countries, it can punish me for carrying arms against all American allies;
and yet military service may be exacted of even an American citizen,
resident in a foreign state, under particular circumstances. The same
difficulty, in principle, may be extended to the whole catalogue of legal
crime.
Congress exists only for specified purposes. It can _punish_ piracy,
but it cannot declare what shall, or shall not, be piracy; as this would
be invading the authority of international law. Under the general power to
pass laws, that are necessary to carry out the system, it can derive no
authority; since there can be no legal necessity for any such double
legislation, under the comity of nations.
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