I concur with my brethren in adhering to the views formerly expressed upon the questions reserved, when this case was presented to us heretofore; for the reasons given in the reported decision in 1 Mich. 161. I am also of opinion that process can not legally be served in a foreign jurisdiction.
But I am unable to discover any authority, in the state of Michigan, to punish an offense like the one here charged upon the plaintiff in error. The record raises expressly *336the question whether the Circuit Court" for St. Clair county-had jurisdiction to punish such an offense. Counsel for the prisoner based his argument mainly upon the want of power in this state to punish acts committed abroad by any but its own citizens; and, assuming that, as to them, it might exist, claimed- that no case was made out by the indictment on that hypothesis. My brethren sustain the act as applicable to such an offense as it describes, committed by any one. As the record can only be sustained by t overruling the objections and errors assigned, the sufficiency of which depends on their own legal character, it becomes necessary to inquire into the validity of the statute, as well as its construction. This is the more important, as this case is the first which has called for any decision upon it, and must stand as a precedent.
Section 5944 of the Compiled Laws (which is the section under which this prosecution is had) is found in a chapter devoted to a number of miscellaneous provisions concerning crimifial prosecutions; and is- as follows-: “ If any such mortal wound shall be given, or other violence or injury shall be inflicted, or poison administered, on the high seas, or on any other, navigable waters, or on land, either within or without the limits of the state, b'y means whereof death shall ensue in any county thereof, such offense may be prosecuted and punished in the county where such death may - happen.” Tyler is charged with having wounded Jones in Canadian waters, whereof he died in this state.
It will be observed that this statute neither creates nor defines any offense. Its original source was an English statute • Avhich, like the Massachusetts statute from which ours was more immediately copied, has never been construed. Neither of these statutes imposes any punishment whatever. Unless there is to be found somewhere else upon the statute book some offense which corresponds with this description, the whole section remains inopera*337tive. We must therefore look into the other statutes of the state to determine what punishable offenses this statute embraces.
No common law offense can be punished in this state by more than two years imprisonment in-the county jail, or more than two thousand dollars fine, unless an express provision is made by statute for a different punishment: Comp. L. § 5958.
The only homicides [punishable under our laws are murder and manslaughter. Manslaughter is punishable by that specific name; the statute neither defining nor grading it, but punishing the common law offense known as such: — Comp. JO. § 5720. Murder is divided into two degrees, but the offense is not defined except by its common law name; and all that the statute does in regard to it is, to divide murder at common law into classes, punishable according to their several degrees of malignity: Comp. JO. §§5711, 5712. Nothing is murder under this statute which was not murder at common law: — People v. Potter, 5 Mich. 1; People v. Scott, 6 Mich. 287. And if Tyler’s offense was not an offense at common law, I do not very well perceive how it can be justiciable in any of our courts. For there can be no power to try for an act which is not punishable. Before inquiring, therefore, into any other considerations of construction or validity, it is important to ascertain what was murder within the common law definitions.
The common law definitions all agree in substance. Hawkins defines murder to be the wilful killing of any subject whatsoever, through malice aforethought, whether the person slain shall be an Englishman or a foreigner: — 1 Hawk. P. C., B. 1 Ch. 31 § 3. And the other authorities either use the same language, or define it as the malicious killing of “ any person under the King’s peace.’’’ Rose. Cr. Ev. 690; 1 East. P. C. 214; 3 Inst. 47; 1 Russ. Cr. L. 482.
*338The slayer must also, under all the authorities, owe temporary or permanent allegiance to the sovereign. If a native of the realm, his allegiance is held to follow his person everywhere; and it has been held that the com» mon law definition of murder would attach to the act, whether within or without the realm, if committed by one owing- allegiance upon another owing it. The term '■'■wider the peace of the King,” signifies under the protection of the King, which is supposed to embrace his subjects everywhere,s,but can only act upon foreigners within his dominions:— See Rex v. Sawyer, 2 C. & K. 101; Regina v. Serva, 2 C. & K. 53; Rex v. Helsham, 4 C. & P. 394; Rex v. Mattos, 7 C. & P. 458; Depardo’s Case, 1 Taut. 26. The slaughter of an Englishman anywhere, by an Englishman, was an offense against the Crown, because depriving it of a subject. The slaughter of a foreigner within the realm was a direct invasion of the peace. But the slaughter of a foreigner abroad, and out of the protection of the King, attacked neither his peace, nor dignity or prerogative, and was no offense at common law. And so closely did the idea of protection attach to the crime that, at common law, and until a statute interfered, it was said that “if aman be attaint in apaermunire, whereby he is put out of the King’s protection, the killing of him was held not homicide: — 1 Hale P. C. 433. And the reason is given in Viner’s Abr. '‘Mwrder, 3.” “If a man kills one who is attainted by pm'munire, this is not Felony, for he is out of the King’s protection, which is the same as if he was out of the realm and power of the King.”
The definitions of the common law applicable to murder aré broad enough to cover very nearly every such killing of malice aforethought as would come, by the broadest construction, within the power of the British government to punish at all. And, accordingly, the various statutes which have been passed have not defined offen*339ses, but merely prescribed the place of trial, and the courts to have cognizance of the offenses. And where a crime has been committed, punishable by the sovereignty, the selection of a place of trial is not a question of power, but merely one of convenience. Those doctrines which required a particular venue for common law prosecutions, had nothing to do with the definition of the crime of murder. They merely regulated the mode of prosecutionAud therefore when the common law courts could not act, according to their ancient practice, Parliament inter-, fered — not by defining new offenses, but by furnishing means to try what were already within the common law definitions. A want of attention to this has sometimes led to confusion in the definition of offenses.
The old rule requiring every offense tried in the common law courts to be inquired of in the county where it occurred, originated in the peculiar constitution of the early juries. They were not selected merely to hear evidence and pass upon it. They were witnesses, as well as triers; and were supposed to act on knowledge derived in their own vicinage. Where an inquiry was necessary into matters occurring in different counties, there was no adequate machinery for conducting it. The ru^ survived its reason; and has been maintained since for convenience rather than necessity; and may'3 therefore be modified upon proper occasion. But, formerly, if a fatal blow was given in one county, and death happened in another, the homicide could not be within the knowledge of the jurors of either county; those who could speak as to the blow having no means of ascertaining the death; and vice versa. But it was settled that, by carrying the- dead body into the county where the wound was given, so that death could be shown by view, the offense might be tried there: 1 JBish. Gr. I. §554, and citations. And although it may be regarded as doubtful, there are nevertheless very high authorities for saying that, at common law (but probably *340when jury trials became more improved) a trial might always be had in the county where the mortal blotv was given, “for that alone is the act of the party, and the death is hut a consequence: — 1 East P. C. 361; 1 Hale P. C. 426 ; 1 Bish. Cr. L. § 454. And it was also necessary at common law, originally, in a case of this kind, to remove the body to the county where the injury was given, in order to have the coroner’s inquest: — 1 East P. C. 361; 1 Hale P. C. 426; 2 Hale P. C. 66. The office of a coroner being to make inquisition concerning sudden or violent deaths, and he being required to act upon a view of the body, the rule referred to has a very strong bearing on what really, in the eye of the law, constitutes the offense in murder; a subject^ to which I shall refer presently in another connection. The statute of 2 and 3 Ed. 6 c. 24, provided that, in case of a mortal injury in one county, followed by death in another, an indictment found in the county where death hapj>ened should be “as good and effectual in law as if the stroke or poisoning had been committed and done in the same county where the party shall die, or where such indictment shall be so found:” — 1 East P. C. 362. This statute originated the practice of indicting at the place of death; and an idea has hence sometimes gained currency that the place of death was the place of the offense; an idea which the language used is not at all calculated to convey, and wbicb is inconsistent with various rules to which I shall refer, in addition to what has already been mentioned.
The statutes of. 28 and 33 H. 8 provided for offenses committed at sea, or abroad, and have been ¿repeatedly held to create no new offenses, and to punish none but those under temporary or permanent allegiance.
In the hearing on the questions reserved we had occasion to consider the construction of various American statutes, which, although using words of unlimited meaning, have always been confined in their operation to offenses *341committed by persons over whom we have an undoubted jurisdiction. It is unnecessary to repeat the views I then expressed. See 7 Mich. 161.
These rulings of the English and American authorities have all been made in clear recognition of the law of nations, which allows no country to punish • offenses not against its own peace or sovereignty; unless they are offenses against the whole human race, which would after all come within the same reason. No offense committed abroad, except by a citizen or subject of a country, can, upon any rule of law recognized in our jurisprudence, be held punishable by that country: — 1 Bish. Cr. L. §581; Wheat. Int. L. (Ed. of 1855) 174, 175.
If this statute is' construed to punish an act done abroad (and, under the construction which my brethren put upon it, I must regard it as so doing), then it is void, not because in violation of any specific clause of our state Constitution, but because all of our constitutions are subject to the law of nations, which is expressly recognized by the Federal Constitution, and which confines the power of every civilized commonwealth within fixed bounds. Even the so-called omnipotence of Parliament has never been held to transcend these limits. Not only is this evidenced by the settled rules of construction which confine the operation of statutes with-' in these principles, but Comyn expressly enumerates among “ What things the Parliament can not do,” that “ it can not do any thing out of the limit of its jurisdiction:”— Com. Dig., '■’■Parliament, JET.” Our limits are fixed by our Constitution in conformity to treaties with Great Britain.
If we should concede that the state of Michigan has all the powers of an independent nation, the power to punish Tyler for any offense committed in Canada must depend upon his citizenship, which must be averred; and to punish" him for a common law homicide, the citizenship of Jones is equally necessary to be averred, in terms, or by language equivalent: — Rex v. Helsham, and Rex v. Sawyer, supra.
*342But I do not conceive that any state of this Union has any such extra territorial power over its citizens. This power is inseparably connected with the duty of protection. This duty can not, under our Federal Constitution, be exercised abroad by the individual states. It belongs to the power which can levy troops, maintain navies, declare war, and hold diplomatic intercourse with other nations. This every state in the Union is forbidden to do. Even within the Union, the citizens of one state are protected in another by virtue of the Federal Constitution. Their own state can not protect them. And upon no principle can its peace and dignity be considered as invaded where, if its own citizens are aggrieved, it has no right, as a state, to communicate with the public authorities at all, whether to supplicate or to demand their rights.
I have referred to this doctrine, that no state can extend its criminal laws beyond its own jurisdiction, because that is precisely what I think this statute has attempted, if reaching this case. But my brethren, who I presume do not deny the doctrine, regard this offense as a domestic, and not as a foreign offense. Can it be so regarded?
If it be a domestic offense, it is made so by the single fact that Jones died in Michigan. It is not pretended that Tyler did any violence to him in this state. But my brethren hold, that the death not only completed the offense or crime of murder, but, as a consequence of Tyler’s act, served to bring him constructively into a violation of our laws, within our jurisdiction. In other words, to maintain this view it must be claimed that the murder was committed, in law, in St. Clair county, because Jones died there. For our statutes punish the whole crime, and not a part of it, even if it be divisible ; and they punish it, if at all, as murder. The offense mentioned is the blow or wound followed by death; and not the death, or the languishing and death, alone. And- we can not very well conceive of a murder at common law, *343or at all, which does not include the active agency of some one in the infliction of that injury which is the cause of death.
The doctrine of constructive presence has no applicability to such a case as this. All that it amounts to is, that the crime shall be regarded as committed where the injurious act is done. A wounding must of course be done where there is a person wounded, and the criminal act is the force against his person. That is the immediate act of the assailant, whether he strikes with a sword or shoots a gun; and he may very reasonably be held present where his forcible act becomes directly operative. But when the bullet rests, or the sword is withdrawn, he ceases to act. And the suffering which the wounded person subsequently undergoes, is not¡ an act, but a mere consequence; a distinction which is real and essential, and can not be disregarded. The death of the assailant before his victim, would not stop the progress of the latter’s lanquishing, nor would the hearty repentance and earnest efforts of the guilty man to bring about a cure, remove his liability, should the hurt person die. Tet it would be absurd to say he continued to have a criminal intent, and that every new pang of the sufferer was a new criminal act of guilt. There is but one guilty act, which consists of the blow or wounding, inflicted with malicious intent; and the suffering and death are both merely effects of that one act. There can be no criminal act unless accompanied by a co - existing criminal intent. If there is no act done within this state with criminal intent, the state has no power to punish; for no crime has been committed within its jurisdiction. This has been very well illustrated in a case in Plowden (p. 261) where a question arose concerning a forfeiture, where a man became felo de ■se. There, as in other homicides, the offense consists in an injury followed by death within a year and a day; and if the lanquishing in murder can be regarded as a series of *344criminal acts of the slayer, the same reason would hold good in self-murder, and repentance would remove the criminal intent necessary to characterize those acts. But Brown J. supposes the case of a man who “voluntarily 'gives himself a mortal wound, and afterwards he repentb and is reconciled to holy church;” and says, for all that the King shall have forfeiture of his goods. A man may beyond doubt be held criminally responsible for the consequences of his acts, if those acts are themselves criminal; but they must be reached through the acts. It is the act that breaks the peace, that sets an evil example, and that causes all the mischief. And it would be introducing a principle which has no sanction in the common law, and for which I have been able to see no reason, son, to hold that a man may be punished for results, where he can not be punished for his acts which caused them.
I have intimated that the place of prosecution prescribed by the statute of Edward, was not in affirmance of the common law; and that the place of death did not, at common law, draw after it the previous assault, so as to bring it constructively within the same jurisdiction. As the whole reasoning of my brethren seems to me to rest upon this assumption, I propose to refer to various authorities to determine it.
In the first place, this statute asserts upon its face, that it was doubtful whether, if" a blow were given in one county and death followed in another, any indictment lay. The langauge is, “in such case it hath not been found, by the laws or customs of this realm, that any such indictment thereof can be taken in either of the said two counties:” — 1 East P. C. 361. If it would previously have been good in either, we have seen that it was in the county of the act, and not of the death. It is also to be remarked that the statute refers to cases where everything occurred within the jurisdiction - of England; and nothing *345therefore was usurped in fixing any venue whatever. And the language used, that the indictment shall be “as good as if the strolee or poisoning had been committed and done in the same county where the party shall die, or where such indictment shall be so found,” indicates plainly that the stroke was not a subordinate consideration. Where a person died on land from a wound received, at sea, it was not triable by the common law courts of ordinary jurisdiction, although the stroke was within the realm,: — 1 East P. C. 365, — because it was not given in the body of a county. Here again we have an example that the place of death did not govern. And a stroke on land followed by death at sea did not give jurisdiction to the admiralty: 1 Hale P. C. 426; Constable's Case, 2 Co. R. 93a. But there are less uncertain authorities than these.
By the common law, all persons present at the commission of a crime, aiding and abetting, are principals. It is laid down by Past, that where i'the stroke and death are laid on different days, the abetment should be laid to the stroke, and not to the death: — 1 East P. C. 351; 2 Hawk. P. C. c. 23, § 89. And see also Viner's Abr. “Murder, W.” In Rex v. Hargrave, 5 C. & P. 170, it was expressly decided, in a case tried in 1831, where the stroke was given in one county and the death occurred in another, that the felony was in the first county. The indictment stated that J. C. assaulted the deceased at, &e., in the county of Middlesex, &c., of which he lanquished and died in Kent; and then proceeded as follows: “And the said James Hargrave, together with, &c., were then and there present aiding, abetting, &c., the said James Cox in the commission of the said felony .” It was objected for the prisoner that the indictment was bad, as it did not, with certainty, charge the prisoner with the commission of the offense in any particular place; for the word there referred to the two parishes. But Patterson J., said “the giving of the blows which caused the death consti*346tutes the felony. The languishing alone, which is not any part of the offense, is laid in Kent; the indictment states that the prisoners were then and there present, aiding and abetting in the commission of the said felony; that must, of course, apply to the parish of All-Saints, Poplar, where the blows which constitute the felony were given; and the words then and there refer with sufficient certainty to that parish.”
The reason given by East and 'Lord Hale, why, before the statute of 2 and 3 Ed. 6, c. 24, an indictment lay in the county of the stroke, is because “ that alone is the act of the party, and the death is but a consequence:” — 1 East P. C. 361; 1 Hale P. C. 426.
In Cole's Case, Plowden, 401, Cole was indicted for the murder of Elizabeth Pembroke, who was wounded on the 12th day of February, and died on the 18th day of June. Cole pleaded an intermediate jiardon of all felohies, misdemeanors and offenses. It was insisted that his act did not become a felony until the death, and therefore was not one of the felonies pardoned. But “ the justices agreed that the pardon discharged him, because the wound given by the prisoner was the cause of the felony; the giving of which wound was an offense and misdemeanor against the Queen; and that being pardoned by the act, all the consequences that followed from the said offense are also pardoned thereby.”
In Riley v. The State, 9 Humph. 646, where the question of venue under the constitution was involved, the injury and death being in different places, the court say: “Although at common law it was said the offense was not complete until the death, yet it would be doing violence to language to say that the offense was committed in the county where the death happens, although the stroke was committed in another county.”
But perhaps the most reliable rule can be drawn from the decisions relating to forfeitures for felony. It is said *347by Lord Hale that “ the relation of the forfeiture or escheat of lands for treason or felony, to avoid all mean incumbrances, is to the time of the offense committed 1 Hale P. C. 360.
In Dame Hales’ case, Plowden, 253, (Hales v. Petit) Sir James Hales and his Avife being seized jointly of an interest in certain leaseholds, he became felo de se. Upon ■a question made concerning the right in his widow by survivorship, it was adjudged that the forfeiture related back beyond his death, to his act that caused it; and the wife’s survivorship Avas anticipated and cut off. And the case was put of a man giving himself a mortal wound, and living for some time, but not for a year and a day; it being declared that, from the time of the original offense, which Avas the cause of the death, the forfeiture took effect by relation, and would avoid all his dispositions of property made thereafter. “ And also, they agreed, in the argument of this case, that if one gives another a mortal wound, and he dies of this wound, and he that killed him is attainted by verdict, the escheat of his land shall have relation to the time of the wound given.” And in Ventris, 371, it is said “if one giveth another a mortal wound, ■and then sells his land, and the person dies, there shall be such relation as to make the land forfeited from the first stroke.” See to the same effect Viner’s Abr. “Forfeiture, i?./” 1 Hale P. C. 426. As a forfeiture Avas a distinctive feature of a common law felony, I can not but regard these rules as of much Aveight in deciding the legal effect of the prisoner’s conduct. In cases where both death -and the cause of death occur within the jurisdiction, the matter is of comparatively little importance how the criminal liability is apportioned; but when the only act done is done beyond our jurisdiction, and yet we seek to punish it, Avhat was before a speculative question becomes one of capital moment.
That principle of the law of nations which denies to any country the right of punishing offenses committed abroad, *348except by its own subjects, rests upon the ground that it has no right to control abroad, in any way, the conduct of foreigners; who must obey the law of the place where they may happen to be, but are responsible to no other power, unless through their allegiance. We have no legitimate concern with the actions of men in Canada, not breaking our peace, or assailing our sovereignty. It is not pretended by any one that, when Tyler shot Jones, he was at the time, in any sense, offending against the state of Michigan. Had Jones died on the spot, this state could not have interfered with Tyler for it. And so long as Jones remained abroad, Tyler was confessedly no infringer of our laws. Tyler committed no act of violence within our borders. For aught that we know, he may have been occupied in yielding aid instead of injury. What, then, can render him a criminal against this state? When and how did he disturb our peace and good order? Jones was not brought here in the prosecution of any murderous design. So far as Tyler is concerned, he might have been carried to Canada as well. Had Jones lived for a few months, although afterwards dying of his wounds, he might have traversed half the states of the Union, and Tyler could have had no voice in controlling his motions. He might go where murder is punished by death, or he might come here, where it is merely a state prison offense; and yet Tyler would be responsible, if this prosecution can be maintained, to any-state or country against which the voluntary choice of Jones might make him a constructive offender. Inasmuch as all present encouraging a prize fight are principal offenders, in oase either of the combatants is slain, or subsequently dies of his injuries, and are thus made guilty of murder or manslaughter — (Rex v. Hargrave, 5 C. &. P. 170; Rex v. Murphy, 6 C. & P. 103), in case either of the persons who have recently edified the English public by such an exhibition should visit this state, and die here, within a year and a day, of injuries there received, *349the whole distinguished company that attended that exhibition would become guilty of manslaughter against the peace and dignity of the state of Michigan. And the resort of invalids to hospitals and watering places, for treatment, may, by the death of any one, subject any absent aggressor to the criminal laws of a state he has never seen, should his occasion call him thither at any subsequent period of his life. This is making the guilt of the offender spring from the acts of others, and not from Ms own. And it is importing into the criminal law a principle at variance with its whole reason. How can the public be wronged by the peaceable entrance of a sick or wounded man, or by his dwelling or dying here? We have no right to exclude him unless Ms disease endangers the public health. And if any harm arises from his coming, he, or those who bring him, are the public disturbers, and not those who have somewhere else contributed to cause his infirmity or disease, but who could not prevent him from going where he should see fit to go.
I think the judgment should be reversed, for want of jurisdiction to try such an offense.
Judgment affirmed.