the offence, or make the offence felony, but left the offence as it was before the act, viz. felony only by the civil law.[1]
§ 1158. Offences against the law of nations are quite as important, and 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 to congress 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 with the convention, in producing the phraseology of the clause.[2] On either subject it would have been inconvenient, if not impracticable, to have referred to the codes of the states, as well from their imperfection, as their different enumeration of the offences. Certainty, as well as uniformity, required, that the power to define and punish should reach over the whole of these classes of offences.[3]
§ 1159. What is the meaning of "high seas" within the intent of this clause does not seem to admit of any serious doubt. The phrase embraces not only the waters of the ocean, which are out of sight of land, but the waters on the sea coast below low water mark, whether within the territorial boundaries of a foreign nation, or of a domestic state.[4] Mr. Justice Blackstone has remarked, that the main sea or high sea begins at the low water mark. But between the high water