court of justice can take notice? The first of these questions turns upon the construction of two acts of parliament, the 11 and 12 Vict., c. 46, s. 1, and the 9 Geo. IV. c. 31, s. 7. The former act provides, that if any person becomes an accessory before the fact to any felony, he may be indicted, tried, convicted, and punished in all respects as if he were a principal felon; and in the preamble it is recited in substance, that it is expedient that accessories before the fact to felonies should stand on the same footing as those who take part in treasons or misdemeanours. If therefore in the case I suppose, A. B. were accessory before the fact to a felony, he might be indicted, tried, convicted, and punished in all respects as a principal felon, by any court within the jurisdiction of which he became accessory, and it is therefore essential to consider in the first instance, whether the assassination of a foreigner by a foreigner in a foreign country is a felony. Whatever may be said of the word "murder," it is clear that "felony," to use the words of Mr. Justice Coleridge, is not a term of universal application; and it was expressly held in the case of R. v. Lewis (1 Cr. Ca. Re. 182), that the stabbing of one foreigner by another on a foreign vessel was not felonious. Indeed, by attending to the definition of felony this becomes plain. According to Sir William Blackstone, felony comprises every species of crime which occasioned at common law the forfeiture of land and goods, and after an elaborate discussion of the matter he concludes, "the true criterion of felony is forfeiture." It needs no proof that a crime committed abroad by a foreigner would entail no forfeiture in this country; therefore, such a crime cannot be felony. I am aware that it has been urged that forfeiture is a consequence not of felony, but of attainder; but this involves a double error. Forfeiture of goods, which is as ancient as forfeiture of land, accrued not on attainder, or the pronouncing of judgment of death or outlawry, but on conviction, for in many cases of felony (as for example in the case of manslaughter) attainder never took place at all; and secondly, the meaning of the definition is not, that the term felony embraces every crime on the commission of which for

feiture follows in fact, for probably a majority of the felonies which are committed escape detection, but that it applies to all acts which make the offender liable to those consequences upon due conviction. There were a variety of ways at Common Law by which persons indisputably guilty of felony might avoid both conviction and forfeiture. A felo de se avoided forfeiture of his land, though not of his goods, by the very nature of the act; a person who stood mute, or challenged more than twenty jurors, or died, or was pardoned before judgment, avoided the consequences of felony; but this does not affect the assertion, that the liability to such consequences is the test by which it is to be ascertained whether an act is or is not felonious. No proposition can be more indisputable than that an alien who has committed a crime abroad cannot be tried for it in England. If it were necessary to cite authority upon such an elementary point, I might state that it is mentioned as the 116th of the 155 abuses of the Common Law reckoned up by the author of the Mirrour. Upon these grounds it appears to me, that the assassination of a foreigner in a foreign country is not felony, and that, therefore, the statute of the 11 & 12 Vict. c. 46, does not apply to the case under consideration.

The next question is, whether such a case could be tried under the 9 Geo. IV. c. 31, s. 7, which provides that, if any of Her Majesty's subjects shall be charged in England with any murder, or with being accessory before the fact to any murder, or after the fact to any murder or manslaughter, the same being respectively committed on land out of the United Kingdom, he may be committed for trial by any justice of the peace, and may be tried by commissioners under the great seal. The mere words of the act are undoubtedly ambiguous; they may mean, that if any person who owes the queen allegiance shall be accessory before the fact to any murder, or after the fact to any murder or manslaughter committed abroad, such person shall be punished. They may also mean, that if any subject being on land out of the United Kingdom shall commit murder, or shall be accessory before the fact to murder, he shall be punished. It appears to me that several

considerations point to the latter construction as the true one. They arise partly from a consideration of the state of things with a view to which the act was passed, and partly from the words of the act itself. At common law no one could be tried for a crime committed out of the body of the county in which the trial took place. The reason was, that in the rude age in which that system originated, the jurors were not judges before whom evidence was laid by prosecutors, public or private, but were rather witnesses summoned from every hundred and village in the county, to supply information to the judges of assize from their local knowledge. The only exceptions to this principle were the admiralty jurisdiction, which applied to crimes committed at sea, and that of the constable and marshal, which applied to crimes committed on land abroad. This latter jurisdiction was, however, confined to crimes against the law martial, and to appeals of death brought by private individuals. There was no public remedy whatever for crimes committed on land abroad, and not committed in the king's army. The admiralty jurisdiction subsists to this day, and it still rests on its ancient footing, though the procedure has been varied by several acts to which I need not specifically refer. At the time of the passing of the act under consideration, there were two acts under which persons might be tried for crimes committed abroad. They were the 28 Hen. VIII. c. 15, and the 33 Hen. VIII. c. 23. The first regulated the procedure of the court of admiralty; the second enabled the king to issue a commission to try any person in any shire for any murder committed either within his dominions or without. Neither of these acts applied originally to accessories before the fact. The 43 Geo. III. c. 113 enacted (s. 5), that if any person within any shire or at sea became accessory before the fact to crimes committed within any shire or at sea, he might be tried either by a court of admiralty, or in the shire in which he became accessory, or in that in which he committed the crime; but this act did not notice the case of a man becoming accessory here to crimes committed on land abroad. In the next section it was further enacted that the 33rd Hen. VIII. c. 23

should be extended to the case of accessories before the fact. This act, therefore, made a plain distinction between the jurisdiction under the two statutes. It laid down a general principle as to the manner in which accessories before the fact were to be dealt with by the admiralty jurisdiction, and it enabled the crown to issue a commission to try a man who might be an accessory before the fact abroad as for a substantive offence. The case of a person in Bernard's position was unprovided for. This defect was remedied by the 7 Geo. IV. c. 64, s. 9, which repeals the 43 Geo. III. c. 113, s. 5, and reenacts its provisions with the addition of the words necessary to extend it to the omitted case. It provides that any person who shall counsel, procure, or command any other person to commit a felony, may be tried by any court which shall have jurisdiction to try the principal felon, in the same manner as if such offence had been committed at the same place as the principal felony, although such offence shall have been committed either on the high seas, or at any place on land, whether within his Majesty's dominions or without. I contend that this section supplies the principle by which Bernard's case (if he had been convicted) would have been governed. The 9 Geo. IV. c. 31, s. 7 (which is one of the first and most important of the modern consolidation acts), merely re-enacts in an improved form, and with the substitution of a more convenient preliminary procedure for that of the Privy Council, the 33 Hen. VIII. c. 23, as explained by 43 Geo. III. c. 113, both of which acts it repeals. These acts empowered the Crown to grant a commission to try persons for being accessories before the fact to murder, and the act which consolidates them does no more; but the jurisdiction of the court as to accessories depends on the 7 Geo. IV. c. 64, s. 9, which makes the power of trying the principal felon the test of the competency, and according to this test a special commission was clearly incompetent to try Bernard. The meaning of the two acts taken together is perfectly plain, and perfectly consistent. The 7 Geo. IV. c. 64, s. 9, provides that any court which can try the principal felon may try the accessory, wherever his offence may have been committed.

The 9 Geo. IV. c. 31, s. 7, enacts that if an Englishman abroad becomes accessory before the fact to murder, a special commission may issue to try him. But for that section (33 Hen. VIII. c. 23 being repealed) no such commission could have issued, and no court have had jurisdiction to try any man for murder, or for being accessory before the fact to murder, in a foreign country.

Another argument to the same effect arises upon the wording of the section. It regulates, it will be observed, the procedure to be adopted against persons charged with committing murder abroad. The principal object to which the attention of the legislator is directed, is the conduct of his Majesty's subjects abroad. Such persons must be Britishborn subjects, or aliens residing abroad in British dominions; and unless we assume that, in connection with the words "being accessory before the fact," the words "his Majesty's subjects" have a different meaning from that which they bear in connection with the words "murder" or "manslaughter," we shall arrive at the absurd conclusion, that the legislature meant to enact that any body who ever came to this country, might be tried for any murder or manslaughter which he had ever committed in any country whatever.

I do not of course deny the doctrine of local allegiance, nor do I deny that a foreigner voluntarily resident in England is her Majesty's subject; but I say that, from the whole frame and scope of the section, it is apparent that British-born subjects, and aliens in British foreign dominions, are referred to, and not persons owing a mere temporary allegiance during their residence here; and I may add, that if this had not been the case it would have been far more natural to use, as in the repealed acts, the words "any person," than to select an expression which, if it be technically sufficient to include resident aliens, is, to say the very least, extremely liable to be misunderstood. Strong evidence is required to show that a word is used in an unfamiliar sense. People sometimes speak of a Christian when they merely mean a man; but if, in any particular case, either word might be used with equal ease, the choice of the