case. distinction expressly. So, also, we have the authority of Lord Hale in many places; and all the authorities agree that the divisum imperium is only upon the sea-coast. The distinction is also perfectly understood and maintained in our own legislation; and the act now in question furnishes the clearest recognition of it, as will appear by a comparison of the 8th with the 12th section. In the 8th section, the distinction is made between the "high seas" and "a river, haven, basin, or bay.' The latter expressions can never, by any fair rule of construction applied to penal statutes, be transferred from the 8th to the 12th section. In criminal cases, a strict construction is always to be preferred; and if there be *doubt, that is of itself [*91 conclusive. In Beran's case, the distinction between the high seas and other inclosed parts of the sea was not denied by the counsel for the United States, and the court do not even mention it as at all doubtful. But it is asked, whether the criminal jurisdiction of the admiralty is not as extensive as the civil? To which it is answered, that the criminal jurisdiction depends upon the place where the offense is committed; the civil, upon the nature of the subject; and there can, therefore, be no com tional character of the offender, or of the per- 1.-3 Wheat. 336, 386. 2.-4 Inst. 136. 3.-4 Inst. 137. 4.-4 Inst. 137. The Attorney-General, in reply, insisted, that although penal laws are to be construed strictly, the intention of the Legislature must govern in their construction. If a case be within the intention and reason, it must be considered as within the letter of the statute. This act having been passed by Congress on the first organization of the government, it must have been their intention to make the exercise of their power co-extensive with their jurisdiction; and to punish all the crimes enumerated, in every place within their jurisdiction. The act must, therefore, be construed so as to engraft the words of the 8th section, descriptive of the place in which murder may be committed, on the 12th section, which describes the place in which manslaughter may be committed. After expressing themselves fully in the previous section as to the places in which one of the crimes intended to be punished by the act must be committed, it was natural that the Legislature #should suppose the language en- [*92 grafted into a subsequent section on a subject of the same class. Thus, the 1st section of the act defines the crime of treason, and provides, that if any person or persons owing allegiance to the United States of America, shall levy war," &c., "such person or persons shall be adjudged guilty of treason," &c. The second section defines misprision of treason, and in specifying the persons who may commit the crime, omits the words "owing allegiance to the United States," and uses without limitation or restriction the general terms “any person or persons." Yet these general terms were obviously intended to be restrained by the words 'owing allegiance to the United States," which are used in the preceding section. The crimes of murder and manslaughter are kindred offenses, and are parts of the same general of 66 5.-1 Life of Sir L. J. 77. 6. Hale, De Jure Maris, c. 4; 2 East's C. L., 304; 2 Hale's P. C. ch. 3. 7.-3 Wheat. 336, fense of homicide. Congress must have in- | 12th with the 8th section of the act. In the tended to make the same provision for their 8th section, Congress has shown its attention to punishment, as to the places within which they the distinction between the "high seas" and must be committed in order to give jurisdiction "a river, haven, basin, or bay. The wellto the courts of the Union. Thus, the 3d sec-known rule that this is a penal statute, and is tion of the act describes the places on land in to be construed strictly, is also urged upon us. which murder must be committed in order to On the part of the United States, the jurisgive those courts jurisdiction of the offense; diction of the court is sustained, not so much and the 7th section describes in the very same on the extension of the words "high seas," as terms the places on land in which manslaughter on that construction of the whole act which must be committed in order to give them juris- would engraft the words of the 8th section, dediction. Observe the consequences of a con- scriptive of the place in which murder may be trary construction as to murder alone. The committed, on the 12th section, which de9th section extends the guilt of the offenses scribes the place in which manslaughter may enumerated ip it to a citizen of the United be committed. This transfer of the words of States committing them under color of a for- one section to the other is, it has been coneign commission. But this section, in describ-tended, in pursuance *of the obvious in- [*95 93*] ing *the place where the offense may be tent of the legislature; and in support of the committed, omits the words "in any river, authority of the court so to do, certain maxhaven, basin, or bay," and uses the words ims, or rules for the construction of statutes high seas" only. It is incredible that it was have been quoted and relied on. It has been the legislative intention to distinguish between said, that although penal laws are to be conthe same crime, committed under the pretext strued strictly, the intention of the legislature of authority by a foreign commission, on the must govern in their construction. That if a high seas, and on the waters of a foreign state, case be within the intention, it must be considor of the United States. So, also, the 10th ered as if within the letter of the statute. section provides, "that every person who shall, if it be within the reason of the statute. either upon the land or the seas, knowingly and wittingly aid and assist, procure, command, counsel, or advise, any person or persons to do or commit any murder or robbery, or other piracy, aforesaid, upon the seas, which shall affect the life of such person, shall," &c. Here Congress cannot have intended to exempt from punishment those persons who shall be accessories before the fact to a murder or robbery committed in a river, haven, basin, or bay," &c. A similar argument is applicable to the 11th section. As to the 12th section, beside the offense of manslaughter, the other offenses which it enumerates are all accessorial to those mentioned in the 8th. It is, therefore, evidently connected with the 8th. So The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals: and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment. It is said, that notwithstanding this rule, the intention of the law-maker must govern in the construction of penal, as well as other statutes. This is true. But this is not a new independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this, that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature Mr. Chief Justice MARSHALL delivered the opinion of the court: The indictment in this case is founded on the 12th section of the act, entitled, "an act for the punishment of certain crimes against the United States." That section is in these words: "And be it enacted, that if any seaman, or other person, shall commit man-is to be collected from the words they employ. slaughter on the high seas, or confederate." &c., such person or persons so offending, 94*] *and being thereof convicted, shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars.' The jurisdiction of the court depends on the place in which the fact was committed. Manslaughter is not punishable in the courts of the United States, according to the words which have been cited, unless it be committed on the high seas. Is the place described in the special verdict a part of the high seas? If the words be taken according to the common understanding of mankind-if they be taken in their popular and received sense-the "high seas," if not in all instances confined to the ocean which washes a coast, can never extend to a river about half a mile wide, and in the interior of a country. This extended construction of the words, it has been insisted, is still farther opposed by a comparison of the Where there is no ambiguity in *the [*96 words, there is no room for construction. The case must be a strong one indeed, which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases. Having premised these general observations, the court will proceed to the examination of the act, in order to determine whether the intention to incorporate the description of place contained in the 8th section, into the 12th, be so apparent as to justify the court in so doing. It is contended, that throughout the act the description of one section is full, and is necessarily to be carried into all the other sections which relate to place, or to crime. The 1st section defines the crime of treason, and declares, "that if any person or persons owing allegiance to the United States of America shall levy war," &c., "such person or persons shall be adjudged guilty of treason," &c. The second section defines misprision of 97*] treason; and in the description of the *persons who may commit it, omits the words "owing allegiance to the United States," and uses without limitation, the general terms "any person or persons." Yet, it has been said, these general terms were obviously intended to be limited, and must be limited, by the words "owing allegiance to the United States," which are used in the preceding section. It is admitted that the general terms of the 2d section must be so limited; but it is not admitted that the inference drawn from this circumstance, in favor of incorporating the words of one section of this act into another, is a fair one. Treason is a breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary. The words, therefore, "owing allegiance to the United States," in the first section, are entirely surplus words, which do not, in the slightest degree affect its sense. The construction would be precisely the same were they omitted. When, therefore, we give the same construction to the second section, we do not carry those words into it, but construe it as it would be construed independent of the first. There is, too, in a penal statute, a difference between restraining general words and enlarging particular words. The crimes of murder and of manslaughter, it has been truly said, are kindred crimes; and there is much reason for supposing that the legislature intended to make the same provision for the jurisdiction of its courts, as to the place in which either might be committed. In illustration of this position, the 3d and 7th sections 98*] of the act have been cited. *The 3d section describes the places in which murder on land may be committed, of which the courts of the United States may take cognizance; and the 7th section describes, in precisely the same terms, the places on land, if manslaughter be committed, in which the offender may be prosecuted in the federal courts. It is true, that so far as respects place, the words of the 3d section concerning murder are repeated in the 7th, and applied to manslaughter; but this circumstance suggests a very different inference from that which has been drawn from it. When the legislature is about to describe the places in which manslaughter, cognizable in the courts of the United States, may be committed, no reference whatsoever is made to a prior section respecting murder; but the description is as full and ample as if the prior section had not been in the act. This would rather justify the opinion, that in proceeding to manslaughter, the legislature did not mean to refer us to the section on murder for a description of the place in which the crime might be committed, but did mean to give us a full description in the section on that subject. So, the 6th section, which punishes those who have knowledge of the commission of murder, or other felony, describes the places on land in which the murder is to be committed, to constitute the crime, with the same minuteness which had been before employed in the 3d, and was, afterwards, employed in the 7th section. In the 8th section, the legistature takes up the subject of murder, and other felo- [*99 nies, committed on the water, and is full in the description of place. "If any person or persons shall commit upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder," &c. The 9th section of the act applies to a citizen who shall commit any of the offenses described in the 8th section, against the United States, or a citizen thereof, under color of a commission from any foreign prince or state. It is observable, that this section, in its description of place, omits the words, "in any river, haven, basin, or bay," and uses the words "high seas only. It has been argued, and, we admit, with great force, that in this section the legislature intended to take from a citizen offending against the United States, under color of a commission from a foreign power, any pretense to protection from that commission; and it is almost impossible to believe that there could have been a deliberate intention to distinguish between the same offense, committed under color of such commission, on the high seas, and on the waters of a foreign state, or of the United States, out of the jurisdiction of any particular state. This would unquestionably have been the operation of the section, had the words, “on the high seas," been omitted. Yet it would be carrying construction very far to strike out those words. Their whole effect is to limit the operation which the sentence would have without them; and it is making very free with legislative language, to declare them totally useless, when they are sensible, and are calculated to have a decided *influence [*100 on the meaning of the clause. That case is not directly before us, and we may perhaps be relieved from ever deciding it. For the present purpose, it will be sufficient to say, that the determination of that question in the affirmative would not, we think, be conclusive with respect to that now under consideration. The 9th section refers expressly, so far at least as respects piracy or robbery, to the 8th; and its whole language shows that its sole object is to render a citizen who offends against the United States or their citizens, under color of a foreign commission, punishable in the same degree as if no such commission existed. The clearness with which this intent is manifested by the language of the whole section, might perhaps justify a latitude of construction which would not be allowable where the intent is less clearly manifested; where we are to be guided, not so much by the words in which the provision is made as by our opinion of the reasonableness of making it. But here, too, it cannot escape notice, that the legislature has not referred for a descrip- | are sensible and are material. They constitute tion of the place to the preceding section, but the description of place which the legislature has inserted a description, and by that inser- has chosen to give us; and courts cannot safely tion has created the whole difficulty of the case. vary that description without some sure guide The 10th section declares the punishment of to direct their way. accessories before the fact. It enacts, that The observations made on this section apply every person who shall, either upon the land or so precisely to the 11th that they need not be the seas, knowingly and wittingly, aid and as-repeated. sist, procure, command, counsel, or advise any person or persons to do or commit any murder 101*] or robbery, or other piracy, *aforesaid, upon the seas, which shall affect the life of such persons, shall," &c. The legal construction of those sections is doubtful, and the court is not now, and may perhaps never *be, required to make it. [*103 It is sufficient to say, that should it even be such as the Attorney-General contends it ought to be, the reasons in favor of that construction do not apply conclusively to the 12th section. They both contain a direct reference to the 8th section. They describe accessorial offenses, which from their nature are more intimately connected with the principal offense than distinct crimes are with each other. The 12th section takes up the crime of manslaughter, which is not mentioned in the 8th; and, without any reference to the 8th, describes the place in which it must be committed, in order to give jurisdiction to the courts of the United States. That place is "on the high seas." There is nothing in this section which can authorize the court to take jurisdiction of manslaughter committed elsewhere. Upon this section, also, as on the preceding, it has been argued, that the legislature cannot have intended to exclude from punishment those who shall be accessories before the fact to a murder or robbery committed "in a river, haven, basin, or bay, out of the jurisdiction of any state;" and now, as then, the argument has great weight. But it is again to be observed, that the legislature has not referred for a description of place to any previous parts of the law, but has inserted a description, and by so doing, has materially varied the obvious sense of the section. "Every person who shall, either upon the land or the seas, knowingly and wittingly aid," &c. The probability is, that the legislature designed to punish all persons amenable to their laws, who should, in To prove the connection between this section any place, aid and assist, procure, command, and the 8th, the attention of the court has been counsel, or advise, any person or persons to directed to the other offenses it recapitulates, commit any murder or piracy punishable under which are said to be accessorial to those enuthe act. And such would have been the opera- merated in the 8th. They are admitted to be action of the sentence, had the words, "upon the cessorial; but the court draws a different inferland or the seas" been omitted. But the legis-ence from this circumstance. Manslaughter is lature has chosen to describe the place where the accessorial offense is to be committed, and has not referred to a description contained in any other part of the act. The words are, upon the land or the seas." The court cannot reject this description. If we might supply the words "river, haven," &c., because they are stated in the 8th section, must we supply "fort, arsenal," &c., which are used in the 3d section, describing the place in which murder may be committed on land? In doing so, we should 102*] *probably defeat the will of the legislature. Yet if we depart from the description of place given in the section, in which Congress has obviously intended to describe it, for the purpose of annexing to the word 'seas" the words" river, haven, basin, or bay," found in the 8th section, there would be at least some appearance of reason in the argument, which would require us to annex also to the word "land" the words fort, arsenal," &c., found in the 3d section. 66 After describing the place in which the "aid, assistance, procurement, command, counsel, or advice" must be given, in order to give to the courts of the United States jurisdiction over the offense, the legislature proceeds to describe the crime so to be commanded or procured, and the place in which such crime must be committed. The crime is, "any murder or robbery, or other piracy, aforesaid." The place is "upon the seas." In this section, as in the preceding, had the words "upon the seas" been omitted, the construction would have been that which, according to the argument on the part of the United States, it ought now to be. But these words an independent crime, distinct from murder, The fixes the punishment to manslaughter on the seas, proceeds to describe other offenses which are accessorial in their nature, without any limitation of place. In every section throughout the act, describing a crime, the right to punish which depends on place, and in some instances where the right of punishment does not depend upon place, the legislature has, without any reference to a preceding section, described the place in which it must be committed, in order to bring the offender within 105*] the act. This characteristic feature *of the law now to be expounded, deserves great consideration, and affords a powerful reason for restraining the court from annexing to the description contained in one section, parts of the description contained in another. From this review of the examination made of the act at the bar, it appears that the argument chiefly relied on, to prove that the words of one section descriptive of the place ought to be incorporated into another, is the extreme improbability that Congress could have intended to make those differences with respect to place, which their words import. We admit that it is extremely improbable. But probability is not a guide which a court, in construing a penal statute, can safely take. We can conceive no reason why other crimes which are not comprehended in this act should not be punished. But Congress has not made them punishable, and this court cannot enlarge the statute. 1.-The constitution of the United States declares, that the judicial power of the Union shall extend (among other things)" to all cases of admiralty and maritime jurisdiction;" and this court has determined, that the power thus granted belongs exclusively to the courts of the United States. Martin v. Hunter, ante, Vol. I., p. 333, 337. It is not the purpose of this note to consider what cases of a civil nature are properly included within the terms, "cases of admiralty and maritime jurisdiction.' As to the criminal jurisdiction of the admiralty, there is no doubt that it is defined by local limits; and in order to ascertain these, it becomes necessary to inquire into the extent of the admiralty jurisdiction of England, from which ours was derived, as that was from the maritime states on the continent of Europe. After giving the subject an attentive consideration, we are unanimously of opinion that the offense charged in this indictment is not cognizable in the courts of the United States; which opinion is to be certified to the Circuit Court for the District of Pennsylvania. CERTIFICATE.-This cause came on to be heard on the transcript of the record of the Circuit Court for the District of Pennsylvania, and on the question on which the judges of that court were divided, and was argued by counsel; on consideration whereof, the court is of opinion, that manslaughter committed in a river such as the river Tigris is described *to [*106 be, is not punishable by the laws of the United States, and that the Circuit Court of the United States, for the District of Pennsylvania, has no jurisdiction over the offense. All which is ordered to be certified to the Circuit Court of the United States for the District of Pennsylvania.1 See S. C. 3 Wash. C. C. 515. Cited 2 Pet. 367; 14 Pet. 475; 5 How. 481; 9 How. 572; 6 Wall 396; 11 Wall. 620; 21 Wall. 491; 2 Otto, 219, 621; 7 Otto, 62; 10 Otto, 276, 279; Blatchf. & H. 249, 252; 1 Biss. 312; 2 Sawy. 151; 1 Abb. U. S. 37; 2 Abb. U. S. 461; 5 Ben. 227; Hemp. 501; 1 Story, 260; 5 Mason, 298; 1 Wood. & M. 438, 448, 458, 463, 466, 472, 483 484; 2 Dill. 226, 228: 3 Dill. 123; 5 Dill. 39, 413; 2 Paine, 143; 3 Blatchf. 438; 16 Blatchf. 19; 1 Brown, 157; 14 Bank. Reg. 67, 68. ecuted by commissioners, with the same power and authority as belonged to the Lord High Admiral; and since the accession of the house of Hanover, the office has also been vested in commissioners, who are styled the Lords Commissioners of the Admiralty. But the King is said still to hold, for certain purposes, the office of Lord High Admiral, though in a capacity distinguishable from his regal character; a distinction of practical importance in the law of prize, but immaterial to the present purpose. The judge of the High Court of Admiralty in England torinerly held his place by patent from the Lord High Admiral, but since that office has only existed in contemplation of law, he holds it by direct commission from the crown. The ancient criminal jurisdiction of the court was modified by the statute of the 28th of Henry VIII., ch. 15, which enacted, that offenses upon the seas, and in havens, rivers, &c., should be tried by the admiral or his deputy, and three or four more, among whom two common law judges are usually appointed, the judge of the High Court of Admiralty presiding. 2 Bro. Civ. and Adm. Law, 458. In Scotland, the court is held before the delegate of the High Admiral,who may also name other inferior local deputies, and who is declared to be the King's Justice-General upon the seas, or fresh water within flood and mark, and in all harbors and creeks. 2 Bro. Civ. and Adm. Law. 30. Both in England and the other countries of Europe, the Court of Admiralty is a branch which has sprung from that ancient and venerable stock, the office of admiral. The etymology of the word serves to indicate the origin of the office, and the time when it was introduced, at least under that name, into Europe. The word admiral or ammiral, is doubtless derived from the Arabic word emir or amira, signifying a general officer or commanderin-chief, dominum vel præfectum. Du Cange. Glossary. Verbo Admiralius. In the time of the crusades, by means of which so many oriental usages were brought into the west of Europe, it was intro- This remarkable conformity between the origin, duced into France as the title of a commander-in-history, and nature of the courts of admiralty in chief, either of land or sea forces. Accordingly, we France and Great Britain, renders it highly probafind that the office, with that title, was unknown ble that their jurisdiction, both civil and criminal, until the third race of French kings, under Charles however it may have been shifted from its ancient IV., about the end of the thirteenth century, and foundations, was originally the same; and [*108 it appeared in England about the same period in this supposition derives additional strength from the reign of Edward I. After the term thus came the manner in which the history of the two counto be exclusively applied to the commander-in- tries is blended together during the middle ages, 107*] *chief of naval forces in France, the station and from the circumstance of both having derived was filled with several illustrious characters, and in their maritime institutions from the shores of the the scale of civil and military dignities ranked im- Mediterranean. mediately after the office of constable. The person who filled this high station had jurisdiction,by himself or his deputies, of all crimes and offenses committed on the sea, its ports, harbors, and shores. Valin, Com. sur l'Ordon., l. 1, tit. 2, art. 10, De la Compétence. In England, the office subsisted with the same title of High Admiral, until the reign of Charles II., when it was filled by his brother, the Duke of York (afterwards James II.), who, being excluded from office as a Catholic by the test act in 1673, it was ex There appears to be no question that the admiralty jurisdiction of England originally extended to all crimes and offenses committed upon the sea, and in all ports, rivers, and arms of the sea, as far as the tide ebbs and flows. This is established by the ancient inquisitions, the record of which still remain in the black book of the admiralty, and by the articles given in charge at the admiralty sessions, as early as the reign of Edward III. Clerk's Praxis; Roughton's articles, passim; Exton, ch. 11, 12, 13. Selden, de Dom. Mar., 1. 2, ch. 24, p. 209. But |