all be guilty of a misdemeanor, and being thereof shall be liable, at the discretion urt, to be kept in penal servitude for any more than ten and not less than three r to be imprisoned for any term not exceedears, with or without hard labour.

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

1.

pers or s

killin amou murd Whe

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

included a case where the conspiracy was to murder a foreigner in a foreign country. The words were introduced ex abundanti cautelá only, and this clause must never be cited as any legislative declaration that a conspiracy in England to murder a foreigner in a foreign country is not a conspiracy indictable at common law, or that the killing of a foreigner in a foreign country, under such circumstances as would amount to murder if the killing were in England, is not murder in contemplation of the law of England.

The introduction of the words in question makes it unnecessary to discuss either of those questions; but, having with no small care examined all the authorities to be found on the subject, I may be pardoned for saying that it is perfectly clear to me that the killing of any person any where in the world, whether on land or sea, under such circumstances that if the killing had been in England it would have amounted to the crime of murder, has ever been murder in contemplation of the law of England. Wherever a murder has taken place in England or on the narrow seas, the Court of King's Bench, or Courts of oyer and terminer or gaol delivery, have had jurisdiction to try it by a jury. Wherever a murder has taken place on the high seas, the Court of Admiralty had jurisdiction to try it according to the civil law; and wherever a murder has taken place on land abroad, the Court of the Constable and Marshal had jurisdiction to try it according to the civil daw. By sundry statutes in and since the time of Hen. 8, the jurisdiction to try murders committed on the high seas and on land abroad, has been conferred on certain tribunals with the aid of a jury; but none of these statutes either alters, or professes to alter, the nature of the offence; on the contrary, they all treat it as murder, and only provide a different mode of trial. The doubt which has arisen, and not unnaturally, seems to have sprung from supposing that, because the Common Law Courts,

trying all offences by the aid of a jury, had only jurisdiction over offences committed in England or on the narrow seas, therefore murder and other offences against the law of nature and nations were no offences at all in the eye of the law of England. The answer is, that the Courts of Admiralty and of the Constable and Marshal did try such offences from the earliest times; and, therefore, it is clear that they always were offences in the eye of the law of England.

Mr. Welsby (Jerv. Arch. 558) says, "the conspiracy must have been formed in England or Ireland;" this is a mistake. The Act by s. 68 includes conspiracies on the sea; and even if that section did not exist, British subjects who conspire on the high seas are triable by the common law in any county in England where any act in furtherance of such conspiracy is done by any one of them, or by their innocent agent; for the crime of conspiracy, amounting only to a misdemeanor, may, like high treason, be tried wherever one distinct overt act of conspiracy is in fact committed. In Rex v. Brisac, 4 East, R. 163, the only acts personally done by the defendants were done either on the high seas at Brassa Sound, or in the Isle of Shetland, and the only acts done in Middlesex, where they were indicted, were done by innocent agents in furtherance of the conspiracy of the defendants, and it was held that they were properly tried in Middlesex. where the individual actings of some of the conspirators were wholly confined to other counties than Middlesex, but the conspiracy against all was proved from the community of criminal purpose, and by their joint co-operation in forwarding the objects of it in different counties, the locality required for the purpose of trial was held to be satisfied by overt acts done by some of them in prosecution of the conspiracy in Middlesex, where the trial was had. Rex v. Bowes, cited in Rex v. Brisac, ubi suprà. Now, at common law, the criminal jurisdiction of counties was local. They were like different

So

kingdoms. Rex v. Weston under Penyard, 4 Burr. R. 2507, per Lord Mansfield, C. J.; yet in conspiracy the jury could, as we have seen, at common law take cognizance of acts done on the high seas, or in another county, provided there were an overt act done in the county where the indictment was preferred: and it would therefore seem that if there were a conspiracy on land abroad, a jury might try it in any place in England where any overt act in pursuance of it was done. Lastly, suppose A. in England conspired with B. abroad to commit 'a murder, and A. did some overt act in England, it would seem that both A. and B. might be tried in England, if B. was a British subject; and that if B. was not a British subject, A. might, nevertheless, be tried where he did that overt act; for such an act would be an act coupled with a criminal intent, and as such indictable, within the principle laid down in Rex v. Higgins, 2 East, R. 5, even if it should be objected that a conspiracy between A. in England, and B., a foreigner, abroad, was not a conspiracy within the criminal law of England. And as a letter written and sent, but intercepted, is an overt act in treason, Rex v. Hensey, 1 Burr. 642; so a letter may be an overt act in conspiracy. In consequence of some doubts that have been uttered, it may be well to add that every foreigner, except an ambassador, whilst in England, is quite as much amenable to our criminal law as a native subject. By the 32 Hen. 8, c. 16, s. 9, every alien, who shall come into this realm, "shall be bounden by and unto the laws and statutes of this realm, and to all and singular the contents of the same;" and see Ex parte Barronet, 1 E. & B. 1. And where a statute speaks of the king's subjects, it extends to aliens; for though they are not the king's natural-born subjects, they are the king's subjects when in England by local allegiance. 1 Hale, P. C. 542; Courteen's case, Hob. 270.

Mr. Archbold (Crim. St. 24) raises a question

Manslaughter.

whether, if one of the conspirators were to commit the murder, and the others were indicted as accessories before the fact, it might not be objected that they could only be tried for a misdemeanor under this clause. The answers are, first, that this clause has only altered the punishment, and created no new offence; and at common law the power to prosecute for a misdemeanor was not only never suggested as in any way preventing a prosecution for felony, but the best authorities always held that the misdemeanor merged in the felony; as, indeed, Mr. Archbold thinks would be held in this case. But, secondly, nothing can be clearer than that if a statute create a misdemeanor, and something be done in pursuance of, and in addition to, that misdemeanor, which amounts to a felony, all persons who have done acts which would make them accessories before the fact to that felony, may be indicted as such (putting aside merger altogether), on the plain ground that they are totally different offences. Mr. Archbold thinks that "perhaps there might be some colourable feature for such an argument, if the offence had remained a felony." It might just as well be said, that because wounding with intent to murder is made a felony, therefore a man who killed another by wounding him could not be indicted for murder. There is no such thing as merger of one felony by another; and when, as is often the case, the same acts constitute several felonies, either at common law or by statute, the prosecutor may indict for any of them. Thus, in cases of real murder, indictments for manslaughter have often been preferred, and so also indictments for administering poison where death has ensued.

As to hard labour, &c., see ante, p. 5.

5. Whosoever shall be convicted of manslaughter shall be liable, at the discretion of the Court, to be kept in penal servitude for life, or for any term not less than three years,-or to be imprisoned for any