a conviction for any other felony for which the prisoner might have been sentenced to suffer death as a felon.

Note. By the 4 Geo. 4, c. 48, s. 1, where any person is convicted of any capital felony, except murder, the Court, instead of pronouncing sentence of death, is empowered to order that sentence to be recorded. By the 6 & 7 Will. 4, c. 30, s. 2, which applied both to England and Ireland, it was enacted, that "sentence of death may be pronounced after convictions for murder in the same manner, and the Judge shall have the same power in all respects as after convictions for other capital offences." In Reg. v. Hogg, 2 M. & Rob. 380, Lord Denman, C. J., held, that under this clause sentence of death might be recorded on a conviction for murder. By the 7 Will. 4 & 1 Vict. 77, s. 3, whenever any offender is convicted before the Central Criminal Court of any crime punishable with death, that Court may direct judgment of death to be recorded. This clause clearly included murder. This clause, so far as it relates to murder, and the 6 & 7 Will. 4, c. 30, s. 2, are repealed by the repealing Act of this Session, and the present clause renders it imperative upon the Court to pass sentence of death on every person convicted of murder; it leaves, however, the time of passing the sentence, and all other proceedings exactly as they were before this Act passed.

Mr. Welsby (Jerv. Arch. 534) says, "This provision will enable the Judge to direct sentence to be recorded under the 4 Geo. 4, c. 48, s. 1; see Reg. v. Hogg, 2 M. & Rob. 380." This is clearly a mistake. Formerly, in the case of every capital felony not within the benefit of clergy (a) the Court had no jurisdiction to pass any other sentence than that of death. Then by the 4 Geo. 4, c. 48, "An Act for enabling Courts to

(a) Abolished by the 7 & 8 Geo. 4, c. 28, s. 6.

abstain from pronouncing sentence of death in certain capital felonies," it is recited that it is expedient in all cases of felony, not within the benefit of clergy, except murder, to authorise the Court "to abstain from pronouncing judgment of death," and it is enacted that whenever any person shall be convicted of any felony, except murder, and shall by law be excluded the benefit of clergy in respect thereof, and the Court is of opinion that the offender is a proper subject for the Royal mercy, the Court may direct the proper officer to ask the offender if he knows anything why judgment of death should not be recorded against him; and, if he do not allege anything sufficient to arrest the judgment, the Court may "abstain from pronouncing judgment of death," and, "instead of pronouncing such judgment," may, "order the same to be entered of record," and thereupon the officer is to enter judgment of death on record in the same manner "as if judgment of death had actually been pronounced." And by sec. 2, "a record of every such judgment is to have the same effect as if such judgment had actually been pronounced, and the offender had been reprieved by the Court." Now it is perfectly clear that under this Act the Court has no jurisdiction to pronounce any sentence at all, and in practice the Court never does pronounce any sentence where judgment of death is recorded. Nor can any two proceedings differ more essentially than pronouncing sentence of death and recording it; as every one who reads the 4 Geo. 4, c. 46, s. 6, and knows what the proceeding is when sentence of death is actually pronounced, cannot fail to perceive.

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Such being the differences between those proceedings, and this clause providing that upon every conviction for murder the Court shall pronounce sentence of death" in the same manner as sentence of death might have been pronounced" before this Act passed, "upon any conviction for any capital felony," it is impossible to conceive that this clause can

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authorise judgment of death to be recorded. In order to do so it must be held to repeal the express exception of murder in the 4 Geo. 4, c. 48, and that too when the legislature had not only left that exception unrepealed; but had actually repealed both the 6 & 7 Will. 4, c. 30, s. 2, and the 7 Will. 4 & 1 Vict. c. 77, s. 3, which alone could be considered previously to authorise the Court to order judgment of death to be recorded in case of murder. Nay, more, it must be held that the words "the Court shall pronounce sentence of death," empower the Court to pronounce no sentence at all, but instead of pronouncing sentence of death, to order judgment of death to be recorded; a totally different thing altogether, and which was created expressly in order that the Court might abstain from pronouncing judgment of. death, and which is not even made equivalent to a judgment of death actually pronounced, but to such a judgment together with a reprieve. Again, under sec. 1 of this Act, if it had stood alone, it is clear that sentence of death must have been pronounced as in other capital felonies, and it would indeed be a strange construction to hold that sec. 2, which, in order to prevent any doubt on the subject, provides that such sentence shall be pronounced in every case in the same manner as in other capital felonies, renders it unnecessary to pronounce any sentence at all, and authorises judgment of death to be recorded.

Mr. Welsby's construction also renders the word "shall" not imperative. Now that word is used here, as in numbers of other instances in these Acts, intentionally instead of "may;" nay more, it is used in contradistinction to "may" in the very same sentence, and we are aware of no case where it has ever been doubted that "shall," when so used, was imperative. Reg. v. Hogg has no bearing on the present clause. It was decided on the words supra, "sentence of death may be pronounced," "and the judge shall have the same power IN ALL

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RESPECTS as after convictions for other capital offences," and Lord Denman, C. J., may have thought that inasmuch as the word was may and not "shall," and the Court would not have the same power IN ALL RESPECTS as in other capital cases, unless it could order sentence of death to be recorded, that this clause authorised the judgment of death to be recorded. This clause is now repealed, and the present clause has "shall" instead of " may," and omits all the words which could warrant the decision in Reg. v. Hogg. I have reason, too, to know that Reg. v. Hogg was considered by a great law lord to have been erroneously decided, and in my experience it has never been acted upon in any case. Mr. Welsby, also, seems to have doubted its authority: for at p. 156, he says that sentence of death may be recorded, "as it seems, in the case of murder, by the 4 Geo. 4, c. 48, and the 6 & 7 Will. 4, c. 30, s. 2, taken together, (see Reg. v. Hogg)."

In the Select Committee of the Lords, the Statutes and case mentioned in this note were all referred to, and fully considered, and the Committee divided on the question whether it should be made incumbent on the Court to pronounce sentence of death on every person convicted of murder, and the majority were in favour of that course; and this clause was put into its present shape by the Committee in order to effect that object, and no member of the Committee, which included Lord Campbell, C., and Lords Cranworth, Wensleydale, Chelmsford, and Kingsdown, entertained a doubt that this clause did make it necessary, on every conviction for murder, actually to pass sentence of death. The partial repeal of the 7 Will. 4 & 1 Vict. c. 77, s. 3, also was inserted in the repeal Act by order of the Committee, and its repeal can only be accounted for on the ground that it was intended to abolish the power to record judgment of death in case of murder.

Body to be

prison.

3. The body of every person executed for murder buried in shall be buried within the precincts of the prison in which he shall have been last confined after conviction, and the sentence of the Court shall so direct.

Note. This clause is framed on the 2 & 3 Will. 4, c. 75, s. 16, and 4 & 5 Will. 4, c. 26, s. 2.

Conspiring or solicit

ing to commit murder.

4. All persons who shall conspire, confederate, and agree to murder any person, whether he be a subject of Her Majesty or not, and whether he be within the Queen's dominions or not, and whosoever shall solicit, encourage, persuade, or endeavour to persuade, or shall propose to any person, to murder any other person, whether he be a subject of Her Majesty or not, and whether he be within the Queen's dominions or not, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not more than ten and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour.

Note. This clause is new in England, but in Ireland, under the 10 Geo. 4, c. 34, ss. 8, 9, the offences mentioned in it were capital felonies; and in the Bill as it passed the House of Lords the offences were continued as felonies, but liable to penal servitude for life; the House of Commons, however, altered them to misdemeanors, punishable with ten years' penal servitude, and as all the offences specified in this clause appear to be misdemeanors at common law (Rex v. Higgins, 2 East, R. 5), the effect of this clause is merely to alter the punishment of them.

The words "whether he be a subject of Her Majesty or not, and whether he be within the Queen's dominions or not," were introduced in order to make it perfectly clear that this clause