United States v. Wiltberger.

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 *92] *should suppose the language engrafted 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 2d 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 offences, and are parts of the same general offence of homicide. Congress must have intended to make the same provision for their punishment, as to the places within which they must be committed in order to give jurisdic tion to the courts of the Union. Thus, the 3d section of the act describes the places on land in which murder must be committed, in order to give those courts jurisdiction of the offence; and the 7th section describes, in the very same terms, the places on land in which manslaughter must be committed, in order to give them jurisdiction. Observe the consequences of a contrary construction, as to murder alone. The 9th section extends the guilt of the offences enumerated in it to a citizen of the United States committing them under color of a foreign commission. But this section, in describing *93] *the place where the offence may be committed, omits the words “in any river, haven, basin or bay," and uses the words "high seas" only. It is incredible, that it was the legislative intention to distinguish between the same crime, committed under the pretext of authority by a foreign commission, on the high seas, and on the waters of a foreign state, or of the United States. So also, the 10th section provides, "that every person who shall, 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, besides the offence of manslaughter, the other offences which it enumerates are all accessorial to those mentioned in the 8th. It is, therefore, evidently connected with the 8th.

United States v. Wiltberger.

February 18th, 1820. MARSHALL, Ch. J., 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 manslaughter, on the high seas, or confederate," &c., "such person or persons, so offending, *and being therefore convicted, shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars.

[*94

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 further opposed, by a comparison of the 12th with the 8th section of the act. In the 8th section, congress has shown its attention to the distinction between the "high seas," and "a river, haven, basin or bay." The well-known rule that this is a penal statute, and is to be construed strictly, is also urged upon us.

On the part of the United States, the jurisdiction of the court is sustained, not so much on the extension of the words "high seas," as on that construction of the whole act, which would 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. This transfer of the words of one section to the other, is, it has been contended, in pursuance *of the obvious intent of the legisla[*95 ture; and in support of the authority of the court so to do, certain maxims or rules for the construction of statutes, have been quoted and relied on. It has been said, that although penal laws are to be construed strictly, the intention of the legislature must govern in their construction. That if a case be within the intention, it must be considered as if within the letter of the statute. So, if it be within the reason of the statute. 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 punish

ment.

It is said, that notwithstanding this rule, the intention of the law-maker must govern in the construction of penal, as well 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.

United States v. Wiltberger.

of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construc*96] tion. 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 recognised in expounding crimi nal 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 treason; and in the *97] description of the *persons who may commit it, omits the words. "owing allegiance to the United States," and uses, without limita tion, 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 of the act have been cited. *The 3d sec*98] tion describes the places in which murder on land may be committed, of which the courts of the United States may take cognisance; 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

United States v. Wiltberger.

federal courts. It is true, that soir 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, cognisable 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 legislature takes up the subject *of murder [*99 and other felonies, 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 offences 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 pretence 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 offence, 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 on the meaning of the clause. [*100 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

United States v. Wiltberger.

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 description of the place, to the preceding section, but has inserted a description, and by that insertion, has created the whole difficulty of the case.

The 10th section declares the punishment of accessories before the fact. It enacts, "that every person who shall, 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 per*101] sons, shall," &c. 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 any place, aid and assist, procure, command, counsel or advise, any person or persons to commit any murder or piracy punishable under the act. And such would have been the operation of the sentence, had the words, “ upon the land or the seas" been omitted. But the legislature has chosen to describe the place where the accessorial offence 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 *probably defeat the will of the legislature.

*102] 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.

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 offence, 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 are sensible and are material. They constitute the description of place which the legislature has chosen to give us; and courts cannot safely vary that