aforesaid, upon the seas, which shall affect the life of such persons, shall," &c. 1820. U. States v. Upon this section, also, as on the preceding, it has been argued, that the legislature cannot have intended Wiltberger. 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 1820. U. States v. 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 intendWiltberger. ed 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 description, without some sure guide to direct their way. The observations made on this section apply so precisely to the 11th, that they need not be repeated. The legal construction of those sections is doubtful, and the Court is not now, and may perhaps never be, required to make it. It is sufficient to say, that should it even be such as the Attorney General contends it ought to be, the reasons in favour of that construction do not apply conclusively to the 12th section. They both contain a direct reference to the 8th section. They describe accessorial offences, which from their nature are more intimately connected with the principal offence, 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. To prove the connection between this section and the 8th, the attention of the Court has been directed to the other offences it recapitulates, which are said to be accessorial to those enumerated in the 8th. They are admitted to be accessorial; but the Court draws a different inference from this circumstance. Manslaughter is an independent crime distinct from murder, and the legislature annexes to the offence, a description of the place in which it must be committed in order to give the Court jurisdiction. The same section then proceeds to enumerate certain other crimes which are accessorial in their nature, without any description of places. To manslaughter, the principal crime, the right to punish which depends on the place in which it is committed, Congress has annexed a description of place. To the other crimes enu 1820. U. States v. Wiltberger. 1820. U. States v. Wiltberger. merated in the same section, which are accessorial in their nature, and some of which at least may be committed any where, Congress has annexed no description of place. The conclusion seems irresistible, that Congress has not in this section inserted the limitation of place inadvertently; and the distinction which the legislature has taken, must of course be respected by the Court. It is the object of the law, among other things, to punish murder and manslaughter, on land, in places within the jurisdiction of the United States; and also to punish murder and manslaughter, committed on the ocean. The two crimes of murder and manslaughter, when committed on land, are described in two distinct sections, as two distinct offences; and the description of place in the one section, is complete in itself, and makes no reference to the description of place in the other. The crimes of murder and manslaughter, when committed on water, are also described as two distinct offences, in two sections, each containing a description of the place in which the offence may be committed, without any reference in the one section to the other. That section which affixes the punishment to manslaughter on the seas, proceeds to describe other offences 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 the act. This characteristic feature U. States. v. Wiltberger. of the law now to be expounded, deserves great con- 1820. sideration, 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. After giving the subject an attentive consideration, we are unanimously of opinion, that the offence 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 |