Campbell J.:
The facts, as set up in the pleadings, show that Tyler shot Jones on an American vessel on the St. Clair river, within the limits of Canada, and that he died of the wound at Port Huron, on land, within the county of St. Clair, in this state. The question presented for our consideration is, whether Tyler’s offense came within the United States laws, and within the jurisdiction of the United States Circuit Court.
It is much to be regretted that this question was not presented to the consideration of the Circuit Court of the United States, where the trial was had. It is fairly raised here upon the issue of a former conviction, and the very able arguments we have listened to have exhausted the subject.
Homicide has always been treated as an offence depending on locality, and it is so regarded by the act of Con[209]*209gress under which Tyler was indicted. Where death does not immediately follow the mortal blow, and happens in another jurisdiction within the realm, the place of death was generally, under the views taken by the common law authorities, the proper place of jurisdiction; inasmuch as the crime was not complete without it. There is some doubt whether, at the common law, originally such offenses were provided for at all. But, as the blow itself may be made a punishable assault, there is no very good reason for not allowing it to be punished as an assault, qualified by its natural and legitimate consequences/ — 1 Bish. Cr. L. §§554, 555. This is the plain design of the act of Congress, which punishes an assault upon the water, when death ensues upon land either within or without the United States. There are very few places in the United States where a crime of violence would come within the Federal jurisdiction. In this case, the place of death being within the state jurisdiction, the authority of Congress to punish the assault could only be deduced from a jurisdiction existing where the assault was committed. And, inasmuch as under our treaties with Great Britain the place was under the exclusive territorial jurisdiction of that country, the case presents the question whether, under this act of Congress, a person who commits the offence charged within a foreign jurisdiction, is made punishable here.
Upon the high seas, every vessel, public or private, is, for jurisdictional purposes, a part of the territory of the nation of its owners. An offense committed on board of such vessel, is an offense against the sovereignty of that nation. But, when a private ship enters a foreign jurisdiction, it becomes at once, with all on board (in the absence of treaty stipulations to the contrary), subject to the municipal laws and control of the country it visits. — The Schooner Exchange v. McFaddon, 7 Cranch, 116. Any crime committed there may be punished by the local laws. The right to- enter upon and navigate the waters of any country, is subject in all cases to the condition of tern[210]*210porary obedience to its laws. And, if the laws of Canada made provision for the punishment of such an assault as the one under consideration, no doubt Tyler, if found there, would have been properly amenable to those laws — whether amenable to our laws or not.
The matter to be investigated resolves itself into the inquiry whether the act of Congress, under which the trial was had in the United States court, is, upon fair rules of construction, intended to cover just such a case as this. If the case falls within it, an inquiry may then arise into its constitutional validity.
By the words of the statute, if taken literally, and without qualification, every person, of whatever nationality, who, upon the waters mentioned in the act, whether in a vessel or not, commits an assault without malice upon any other person, of whatever nationality, and whether in or out of a vessel, of which the assaulted person dies on land, within or without the United States, is guilty of manslaughter, and punishable in the Federal courts.
• No one would contend for a moment that the act should be so broadly construed. It would occur at once that there are several classes of objections to such a construction. It is obvious that Congress could by no possibility have power in all these cases. It is also plain that, if any of these places are off the high seas, some provisions which might be valid on the high seas, would not be so elsewhere. And it is further manifest that, whether on or off the seas, the citizenship of the parties might become an important element in the inquiry. Other difficulties might arise, which it is unnecessary to refer to more particularly.
It is undoubtedly true that every word which goes to the description of an offense, or the circumstances under which it is punishable, must be regarded; or, in other words, that no one can be held liable unless he comes within all the particulars of the offense described. But there is no rule of construction which requires, when a legislature, out [211]*211of abundant caution, enumerates a great variety of possible places, and punishes crimes committed in any of them, that the law must be regarded as an assertion that there are such places within the jurisdiction. And it does not, therefore, necessarily follow, because Congress has provided for the punishment of offenses upon bays, creeks, havens, and rivers not within states, nor forming a part of the high seas, that we must assume the existence of such within the admiralty jurisdiction — much less that Congress intended to include within that list all navigable waters on the globe without the United States. And there is no principle which would include Canadian waters that would not require this unlimited construction.
The phrases describing the waters named in this act of Congress, are substantially'borrowed from English statutes relating to the admiralty. Under those statutes, the havens, bays, &c., named, were all understood to be within the realm, and opening from the- sea, although, by the prevailing authority, their enumeration was nugatory; for, according to many cases, none were in fact within the admiralty jurisdiction. The decisions on this point were not uniform. In the conflict of opinion on the extent of admiralty jurisdiction, it was wise to include such places in any general act; and yet their inclusion, as qualified, could not be regarded as corroborating the admiralty claim. In borrowing phrases from old statutes, it is usually deemed proper to take them as construed. If this be done, the statute before us is satisfied without departing from the republic. If there are such waters as are there described within the republic, and not within states, they are included. If there are no such waters in the country, still the act is not impaired, but is only applicable, as in England, to the high seas.
This act was passed in 185Y, but it is amendatory and supplementary to other acts, of identical extent, as old as 1Y90. And it is not to be supposed that it was meant to use language in any different senses at the different periods; [212]*212A reference to the condition of things existing when the Constitution was adopted, as well as subsequently, will show that, whatever may have been the real state of the case, there were, in more than one locality, navigable waters open from the ocean, and not admitted to have been within the exclusive jurisdiction of any particular state. Such seems to have been the case with Delaware bay (see 1 Kent Com. 29), and even the Delaware river was held in Pennsylvania, in Montgomery v. Henry, 1 Dall.
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Campbell J.:
The facts, as set up in the pleadings, show that Tyler shot Jones on an American vessel on the St. Clair river, within the limits of Canada, and that he died of the wound at Port Huron, on land, within the county of St. Clair, in this state. The question presented for our consideration is, whether Tyler’s offense came within the United States laws, and within the jurisdiction of the United States Circuit Court.
It is much to be regretted that this question was not presented to the consideration of the Circuit Court of the United States, where the trial was had. It is fairly raised here upon the issue of a former conviction, and the very able arguments we have listened to have exhausted the subject.
Homicide has always been treated as an offence depending on locality, and it is so regarded by the act of Con[209]*209gress under which Tyler was indicted. Where death does not immediately follow the mortal blow, and happens in another jurisdiction within the realm, the place of death was generally, under the views taken by the common law authorities, the proper place of jurisdiction; inasmuch as the crime was not complete without it. There is some doubt whether, at the common law, originally such offenses were provided for at all. But, as the blow itself may be made a punishable assault, there is no very good reason for not allowing it to be punished as an assault, qualified by its natural and legitimate consequences/ — 1 Bish. Cr. L. §§554, 555. This is the plain design of the act of Congress, which punishes an assault upon the water, when death ensues upon land either within or without the United States. There are very few places in the United States where a crime of violence would come within the Federal jurisdiction. In this case, the place of death being within the state jurisdiction, the authority of Congress to punish the assault could only be deduced from a jurisdiction existing where the assault was committed. And, inasmuch as under our treaties with Great Britain the place was under the exclusive territorial jurisdiction of that country, the case presents the question whether, under this act of Congress, a person who commits the offence charged within a foreign jurisdiction, is made punishable here.
Upon the high seas, every vessel, public or private, is, for jurisdictional purposes, a part of the territory of the nation of its owners. An offense committed on board of such vessel, is an offense against the sovereignty of that nation. But, when a private ship enters a foreign jurisdiction, it becomes at once, with all on board (in the absence of treaty stipulations to the contrary), subject to the municipal laws and control of the country it visits. — The Schooner Exchange v. McFaddon, 7 Cranch, 116. Any crime committed there may be punished by the local laws. The right to- enter upon and navigate the waters of any country, is subject in all cases to the condition of tern[210]*210porary obedience to its laws. And, if the laws of Canada made provision for the punishment of such an assault as the one under consideration, no doubt Tyler, if found there, would have been properly amenable to those laws — whether amenable to our laws or not.
The matter to be investigated resolves itself into the inquiry whether the act of Congress, under which the trial was had in the United States court, is, upon fair rules of construction, intended to cover just such a case as this. If the case falls within it, an inquiry may then arise into its constitutional validity.
By the words of the statute, if taken literally, and without qualification, every person, of whatever nationality, who, upon the waters mentioned in the act, whether in a vessel or not, commits an assault without malice upon any other person, of whatever nationality, and whether in or out of a vessel, of which the assaulted person dies on land, within or without the United States, is guilty of manslaughter, and punishable in the Federal courts.
• No one would contend for a moment that the act should be so broadly construed. It would occur at once that there are several classes of objections to such a construction. It is obvious that Congress could by no possibility have power in all these cases. It is also plain that, if any of these places are off the high seas, some provisions which might be valid on the high seas, would not be so elsewhere. And it is further manifest that, whether on or off the seas, the citizenship of the parties might become an important element in the inquiry. Other difficulties might arise, which it is unnecessary to refer to more particularly.
It is undoubtedly true that every word which goes to the description of an offense, or the circumstances under which it is punishable, must be regarded; or, in other words, that no one can be held liable unless he comes within all the particulars of the offense described. But there is no rule of construction which requires, when a legislature, out [211]*211of abundant caution, enumerates a great variety of possible places, and punishes crimes committed in any of them, that the law must be regarded as an assertion that there are such places within the jurisdiction. And it does not, therefore, necessarily follow, because Congress has provided for the punishment of offenses upon bays, creeks, havens, and rivers not within states, nor forming a part of the high seas, that we must assume the existence of such within the admiralty jurisdiction — much less that Congress intended to include within that list all navigable waters on the globe without the United States. And there is no principle which would include Canadian waters that would not require this unlimited construction.
The phrases describing the waters named in this act of Congress, are substantially'borrowed from English statutes relating to the admiralty. Under those statutes, the havens, bays, &c., named, were all understood to be within the realm, and opening from the- sea, although, by the prevailing authority, their enumeration was nugatory; for, according to many cases, none were in fact within the admiralty jurisdiction. The decisions on this point were not uniform. In the conflict of opinion on the extent of admiralty jurisdiction, it was wise to include such places in any general act; and yet their inclusion, as qualified, could not be regarded as corroborating the admiralty claim. In borrowing phrases from old statutes, it is usually deemed proper to take them as construed. If this be done, the statute before us is satisfied without departing from the republic. If there are such waters as are there described within the republic, and not within states, they are included. If there are no such waters in the country, still the act is not impaired, but is only applicable, as in England, to the high seas.
This act was passed in 185Y, but it is amendatory and supplementary to other acts, of identical extent, as old as 1Y90. And it is not to be supposed that it was meant to use language in any different senses at the different periods; [212]*212A reference to the condition of things existing when the Constitution was adopted, as well as subsequently, will show that, whatever may have been the real state of the case, there were, in more than one locality, navigable waters open from the ocean, and not admitted to have been within the exclusive jurisdiction of any particular state. Such seems to have been the case with Delaware bay (see 1 Kent Com. 29), and even the Delaware river was held in Pennsylvania, in Montgomery v. Henry, 1 Dall. 50, not to be within the body of any county. The same difficulties existed in New York bay and the lower part of Hudson river, which, in 1808, were the source of serious controversies between New York and New Jersey. — N. Y. Rev. L. of 1813, vol. 1, p. 238. It was not until 1834 that the controversy was settled; and now each state has the right to serve process over all of the lower waters, while the jurisdiction and property are parceled out in a very different manner from that usually adopted by neighboring states. — 3 N. Y. Rev. Stat. p. 175. There were also waters opening into the Gulf of Mexico which were within territories; and the subsequent acquisition of Louisiana and Florida continued this state of things up to the admission of Florida into the Union. Upon the Pacific coast, we have still some waters of this description. There is, therefore, no necessity to go beyond our own territory to satisfy the act. And the jurisdiction referred to, by the language used, being a local one, referring (as was held in United States v. Bevans, 3 Wheat. 336) to a fixed natural locality, and not satisfied by a vessel, even although that vessel was a public man-of-war, we ought not to extend a claim of criminal jurisdiction into foreign parts, unless such an intention is very clearly expressed.
Whether, apart from the jurisdiction over commerce, any such prerogative exists over citizens as to authorize us, as is done in England, to take cognizance of their offenses wheresoever committed, or whether, if possessed, it is vested in the individual states, which have exclusive supervision of [213]*213all ordinary transactions at home, or in, the Federal government, which at home has no concern with such acts, is an interesting inquiry, but entirely unnecessary for the purposes of this case. No case is reported in which jurisdiction over' the delinquencies of absent citizens has been exercised by the United States courts on any such ground. And I have discovered no act of Congress which purports to provide for such cases. The offenses committed out, of the country, which are made punishable (except military delinquencies, and correspondence with foreign powers, and possibly treasons) are all confined to the waters.
The power to define and punish piracies, and felonies upon the high seas, and offenses against the law of nations, is given by the Constitution in the,broadest terms. The Crimes act of 1790 uses as broad language as the act before us, namely: “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,” t&c.. 1 L. U. S. p. 113. And the language thus used was not qualified by the phrase which is found in the acts of 1825 and 1857, “within the admiralty jurisdiction of the United States.” The act literally reached “any person” who might commit the offenses charged in any navigable waters. Murder and robbery committed there were declared -to be piracy, as murder and robbery on the sea were piracy at common law. In the case of the United States v. Palmer, 3 Wheat. 610, it was expressly held that robbery committed on the high seas by American citzens, upon a foreign ship, did not come within the intent of the act, although the language of the act was broad enough to cover such a case, and if was also within the power of Congress. This ruling was based upon the doctrine that the - law was only intended to punish crimes against the United States; and a crime committed on board of a foreign ship on the high seas, or upon a foreigner, not on an. American ship, was no offense against the United States, [214]*214because not committed within her jurisdiction. In United States v. Holmes, 5 Wheat. 412, the same doctrine was recognized as to vessels having a lawful -national character. In United States v. Klintock, 5 Wheat. 144, where the offense charged was alleged to have been committed on a piratical vessel which had no nationality, it was held to come within the act, because it was an offense against all nations, and of universal jurisdiction. But Fthe doctrine as to foreign vessels is reiterated in this language : “ Those general terms ought not to be applied to offenses committed against the particular sovereignty of a foreign power; but we think they ought to be applied to offenses committed against all nations, including the United States, by persons who, by common consent, are equally amenable to the laws of all nations.” In the case of the United States v. Certain Pirates, 5 Wheat 184, Johnson J., intimates a doubt whether, in cases of robbery, which he deems general piracy, the fact that it was committed on a foreign ship should exempt it from our jurisdiction. He, however, lays it down very clearly that murder on a foreign ship is no offense against the United States, and in no sense within her jurisdiction; but he also intimates a doubt whether, if committed by an American, it may not be reached by reason of his allegiance. The court, however, has never departed from the doctrine in Palmer's case. It was held in the Pirates' case that a piratical offense, committed on a piratical vessel, was punishable, although committed within a marine league of the shore of a foreign country, provided it was upon the high seas; because the neutral rights allowed in favor of nations over that space of the ocean, render it neutral to war only, and not to crimes. And it is well settled that the - maritime jurisdiction accorded to nations over their contiguous waters, is not an absolute and exclusive one, but is subject to the peaceable use of all parts of the open ocean as a common highway of nations, but liable to any regulations [215]*215necessary for the safety and protection of commercial rights and the fisheries, as well as the preservation of neutrality. A foreign vessel, upon any part of the high seas, has been regarded as foreign territory.
In the United States v. Kessler, Baldw. 15, the question came up directly, whether an offense committed on a French vessel, within a marine league of our coast, was punishable in the Federal courts; and it was held that such a vessel was foreign territory, and for that reason a crime committed on her was not punishable by our laws. In the United States v. Davis, 2 Sumn. 482, an American officer of a vessel, who, while on his own vessel on the high sea, but within a short distance of the shore of the Society Islands, shot a person on a vessel belonging to those islands, was held not punishable under the acts of Congress; and the court regarded the offense as exclusively punishable by the local authorities. The decision was given by Judge Story, who drew the Crimes act of 1825, and whose inclination was generally in favor of giving a liberal extension to the Federal jurisdiction. This decision is in accordance with Palmer's case.
Every principle which takes out of the operation of the acts of Congress crimes committed by Americans on foreign vessels on the high seas, applies with greater force to offenses committed within the acknowledged and fixed territorial limits of a foreign nation, because it is dependent entirely on the national character of the place of the offense, and can not, by any sound reasoning, reach that which is territory by implication only, and yet be excluded from that which is actual territory.
. This view of the courts is strengthened by the fact, that those statutory marine offenses which are not confined to place, are all mutinous offenses, committed on board of American vessels by their crews. The only case expressly provided for in foreign waters, is where offenses are committed by persons belonging, as passengers or crew, on board of Ameri[216]*216can vessels, on othe: s occupying similar relations to the same ship, and committed on the ship (see §5 of aet of 1825)# And, even in that case, which is plainly within the power to regulate foreign commerce, it is expressly provided that, if the offense be punished by the local authorities, such punishment shall be a bar to further proceedings in this country. This act shows that it could never have been intended to regard offenses committed abroad, as offenses against the United States, merely because committed by American citizens, or on American vessels, unless some other element entered into the account.
It is further worthy of consideration whether the mischief of the old law is not to be regarded, as in great measure, the occasion of the new. The act of 1790 punished manslaughter only when committed on the high seas. In the case of the United States v. Wiltberger, 5 Wheat. 76, it was decided that, under that act, manslaughter committed on an American ship near Whampoa, in a river navigable from the ocean, was not punishable. That decision was made in 1820. A revision of the Crimes acts was made in 1825, and yet it was not considered necessary to make any new law on the subject. As Whampoa was then without the jurisdiction of any country which had recognized the general law of nations, there was certainly strong occasion for a change, unless the policy of this country had been regarded as fairly expressed in Palmer's case. And, if the British portion of St. Clair river is within the purview of the act of 1857, we shall have presented the singular anomaly, of an assault which constitutes a crime if followed by death on land, either within or without the United States, and yet is no crime or offense whatever if followed by death on the spot. The act of 1S57 was occasioned by the result of a trial before Judge Curtis for a fatal assault committed on the high seas, and which would have amounted to manslaughter, under the old statute, if the wounded man had not survived long enough to be landed. United States v [217]*217Armstrong 2 Curt. C. C. 451. The' bill was introduced by Mr. Fessenden, who made this statement on its introduction ; and it passed without any examination or debate. There is no reason to suppose its intention was to go beyond the class of assaults made manslaughter under the former statute, or to do more than provide for the cases of death on land resulting from attacks which already were punishable where death occurred at the place where the fatal blow was given. If designed to go further, it creates a' new easum omissum by no means less formidable than the one it was meant to supply. I am very strongly inclined to the opinion that, even if the other statutes had received no construction, the effect of this, as an amendatory act, should be confined to the high seas. But, be this as it may, I have no doubt whatever that it can not be extended to cover an assault made in a foreign country, imless made by one of a ship’s company or passengers upon another of the inhabitants of the ship.
These considerations would, to my mind, be sufficient to dispose of the case before us, without regard to the views which have been presented to us as applicable to these particular waters. Although they are navigable, and actually used for commerce of a maritime nature, which, when foreign, or between different states, may, perhaps, be open, under the legislation of Congress, to the forms of admiralty remedies, where the option of a jury trial is allowed, yet every portion of the lakes and their connecting waters is the exclusive property of Great Britain, or of some American state. And the Supreme Court of the United States has recently decided that upon these waters, as upon the internal tide-waters of the states, the jurisdiction of the admiralty is not local and territorial, but is transitory, and attaches only to such commerce as has been, by the Constitution of the United States, submitted to the control of Congress (Allen v. Newberry 21 How. 244; and Maguire v. Card, Id. 248). There is no construction of the act of 1857 [218]*218.which, under any theory of jurisdiction, could extend it to offenses committed on the lakes, for they come within none of the terms used; and it would be a very forced construction which should apply the statute to their connecting waters.
Without expressing any opinion upon the power of Congress to punish such an offense as Tyler’s, I am entirely satisfied that no act of Congress now in force can be fairly construed1 to embrace it. I am therefore of opinion that the case was not within, the jurisdiction of the Circuit Court of the United States for this district, and was not within the intent of the act of 1857.
Both questions reserved should be answered in the negative.