years after the offence committed, if the party grieved be not then in prison; and if he be in prison, then within two years after his decease, or delivery out of prison, which shall first happen.

By the Merchant Shipping Act, 17 & 18 Vict. c. 104, s. 206, "If the master or any other person belonging to any British ship, wrongfully forces on shore and leaves behind, or otherwise wilfully and wrongfully leaves behind, in any place, on shore or at sea, in or out of Her Majesty's dominions, any seaman or apprentice belonging to such ship before the completion of the voyage for which such person was engaged or the return of the ship to the United Kingdom, he shall for each such offence be deemed guilty of a misdemeanor."

Sec. 207. "If the master of any British ship does any of the following things; (that is to say)

(1.) Discharges any seaman or apprentice in any place situate in any British possession abroad (except the possession in which he was shipped), without previously obtaining the sanction in writing indorsed on the agreement of some public shipping master or other officer duly appointed by the local government in that behalf, or (in the absence of any such functionary) of the chief officer of customs resident at or near the place where the discharge takes place;

(2.) Discharges any seaman or apprentice at any place out of Her Majesty's dominions without previously obtaining the sanction so indorsed as aforesaid of the British consular officer there, or (in his absence) of two respectable merchants resident there;

(3.) Leaves behind any seaman or apprentice at any place situate in any British possession abroad on any ground whatever, without previously obtaining a certificate in writing so indorsed as aforesaid from such officer or person as aforesaid, stating the fact and the cause thereof, whether such cause be unfitness or inability to proceed to sea, or desertion or disappearance; (4.) Leaves behind any seaman or apprentice at any place out of Her Majesty's dominions, on shore or at sea, on any ground whatever, without previously obtaining the certificate indorsed in manner and to the effect last aforesaid of the British consular officer there, or (in his absence) of two respectable merchants, if there is any such at or near the place where the ship then is: He shall for each such default be deemed guilty of a misdemeanor, and the said functionaries shall and the said merchants may examine into the grounds of such proposed discharge, or into the allegation of such unfitness, inability, desertion, or disappearance as aforesaid, in a summary way, and may for that purpose, if they think fit so to do, administer oaths, and may either grant or refuse such sanction or certificate as appears to them to be just."

*Sec. 208. Upon the trial of any information, indictment, or other pro- [*964

ceeding against any person for discharging or leaving behind any seaman or apprentice, contrary to the provisions of this Act, it shall be upon such person either to produce the sanction or certificate hereby required, or to prove that he had obtained the same previously to having discharged or left behind such seaman or apprentice, or that it was impracticable for him to obtain such sanction or certificate."

Sec. 518. In all places, except Scotland, the offences are to be punishable as follows:-1. "Every offence by this Act declared to be a misdemeanor, shall be punishable by fine or imprisonment."(c) 2. " "Every offence by this Act declared to be a misdemeanor, shall also be deemed to be an offence hereby made punishable by imprisonment for any period not exceeding six months, with or without hard labor, or by a penalty not exceeding one hundred pounds, and may be prosecuted accordingly in a summary manner instead of being prosecuted as a misdemeanor."(d) Sec. 520. "For the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed, and every cause of complaint to have (c) The Court is also empowered to grant costs in the same manner as if the misdemeanor had been mentioned in the 7 Geo. 4, c. 64.

(d) 3. The offence just mentioned may be prosecuted before two justices in England under the 11 & 12 Vict. c. 43, and in Ireland under the 14 & 15 Vict. c. 93.

arisen, either in the place in which the same actually was committed or arose, or in any place in which the offender or person complained against may be.”(e)

Where on an indictment on the 5 & 6 Will. 4, c. 19, against a master of a vessel for leaving one of his crew at Quebec, in Lower Canada, for the defence a certificate stating that the defendant appeared before E. B. a commissioner for carrying into effect the imperial Act of the 5 & 6 Will. 4, c. 19, respecting merchant seamen, and being duly sworn, said that the seaman in question did desert from the vessel while at Quebec, and was then absent without leave, it was held that this certificate was insufficient. It did not state the facts as ascertained by the proper authority, but merely proved that the captain swore certain things before him. The Act required the proper officer to certify that the truth is so, not that another deposed to it.(ƒ)

The indictment alleged that the defendant was master of a merchant ship called the Sarah Charlotte, belonging to a subject of the United Kingdom, namely, J. H., and that E. W. and H. G. were persons belonging to the crew, and on board the said ship, duly engaged to serve in a voyage, which was not then completed; and that one E. P. was Her Majesty's consul at Bahia, and that the defendant at Bahia unlawfully, wilfully, and wrongfully did leave the said E. W. and H. G. behind on shore, before the completion of their voyage, on the plea that they were not in a condition to proceed on the voyage, he not having obtained a previous certificate in writing of the said consul or of any such functionary of their not being in such condition, there being time to obtain *such certificate.(g) It appeared from *965] the evidence for the prosecution, that E. W. and G. H. were both ill when

the vessel put into Bahia on her voyage, and went ashore, and saw the doctor, who said they were not sick enough to be left on shore, and go to the hospital, as they wished; they then went to the English consul, who said he could do nothing without the doctor's certificate, and the captain then said they might take his boat and fetch their things ashore, and keep out of the consul's sight till the ship had sailed. They did so, and the captain sent them some dollars by a passenger. For the defence it was shown that E. W. and H. G. asked the captain's leave to go ashore to see the doctor or consul, as they did not wish to stay in the ship, not being able to do their duty, and that the captain said he could not put them on shore till he had seen the consul; that they went ashore, and came again and asked for their clothes, and the mate believing that they had got their discharge, though they did not say so, let them have them; that they were very ill, and if they had not gone on shore at Bahia and got medical advice, one of them would have died; that the consul refused them a certificate, and the passenger, thinking it was a cruel refusal on his part, gave them the dollars out of his own pocket, to relieve them on shore, and did not pay them as the agent of the captain. The collector of customs of the port of Harwich produced a certificate of the registry of the ship with the name James Howard in it, which he knew to be his signature, but did not see him write it: the declaration was signed by him. He knew Howard personally. He lived near Harwich, and was the proprietor of several ships. He did not know where he was born: he was a British subject; he knew he was so by the declaration which he had made. He believed him to be an Englishman. Cresswell, J., and Coleridge, J., were of opinion, first, that the allegation of ownership was a material allegation, and must be proved as laid; secondly, that the 41st(h) and 42d sections of the 5 & 6 Will. 4, c. 19, did not create separate offences, but that they should be taken together, and were intended to show that certain conduct on the part of the seamen will not excuse the captain, unless he produce the required certificate; and therefore, thirdly, that on this indictment, which charged the defendant with wrongfully and wilfully leaving behind him two persons belonging to his crew, the only answer

(e) The Act contains other provisions for service of summons, levying and application of penalties, limitation of summary proceedings, and for legal procedure in Scotland.

(f) Reg. v. Smison, 1 Cox C. C. 188, Commr. Bullock after consulting the Recorder. (g) The count concluded with an averment that the defendant was found within the jurisdiction of the Central Criminal Court.

(h) Quære, 40th.

he could give would be either to prove the certificate, or show the impossibility of obtaining it; and not having done either of these things, if the jury believed the evidence, he must be found guilty.(i)

*Sec. II-Of Child Stealing.

[*966

By the 24 & 25 Vict c. 100, s. 56, "Whosoever shall unlawfully, either by force or fraud, lead or take away, or decoy or entice away or detain, any child under the age of fourteen years, with intent to deprive any parent, guardian, or other person having the lawful care or charge of such child, or the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong, and whosoever shall, with any such intent, receive or harbor any such child, knowing the same to have been, by force or fraud, led, taken, decoyed, enticed away, or detained as in this section before mentioned, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years and not less than three years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and, if a male under the age of sixteen years, with or without whipping: provided that no person who shall have claimed any right to the possession of such child, or shall be the mother or shall have claimed to be the father of an illegitimate child, shall be liable to be prosecuted by virtue hereof on account of the getting possession of such child, or taking such child out of the possession of any person having the lawful charge thereof."(k)

By sec. 70, "Whenever whipping may be awarded for any offence under this Act, the Court may sentence the offender to be once privately whipped, and the number of the strokes and the instrument with which they shall be inflicted shall be specified by the Court in the sentence."(1)

Upon the trial of any offence contained in the preceding section, the defendant may, under the 14 & 15 Vict. c. 100, s. 9, be convicted of an attempt to commit the same, and thereupon may be punished as if he had been convicted on an indictment for such attempt.(m)

*CHAPTER THE NINTH.

[*967

OF CONSPIRACIES AND ATTEMPTS TO MURDER; OF MAYMEM, OR MAIMING; AND OF DOING OR ATTEMPTING SOME GREAT BODILY HARM.

Sec. I.-Of Conspiracies to Murder.

By the 24 & 25 Vict. c. 100, s. 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 endeavor 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 to be imprisoned for any term not exceeding two years, with or without hard labor (a)

(i) Reg. v. Dunnett, 1 C. & K. 425 (47 E. C. L. R.).

years, or

(k) This clause is taken from the 9 Geo. 4, c. 31, s. 21, and 10 Geo. 4, c. 34, s. 25 (I.). The word "unlawfully" is substituted for "maliciously," which was inaccurately used in the former enactments. The age of the child is extended from ten to fourteen years, and "guardian" is introduced; and in the proviso words are added to include the mother of an illegitimate child. As to counsellors and aiders, see sec. 67, ante, p. 881. As to hard labor, &c., see ante, p. 900. As to fine and sureties, see ante, p. 900. (4) The Act extends to Ireland, but not to Scotland.

(m) See ante, p. 1.

(a) The Act extends to Ireland, but not to Scotland. As to hard labor, see ante, p. 900. As to fine and sureties, see ante, p. 900. As to offences on the sea, see ante, p. 762.

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, (b) the effect of this clause is merely to after the punishment of them.

Conspiracies to murder have very rarely come before any tribunal in England: but there is one very notorious case, where a number of persons, in order to procure the rewards given by Acts of Parliament for apprehending robbers on the highway, concocted a pretended charge of robbery against one Kidden, who was convicted and executed for it upon the evidence of two of them, and these persons were afterwards tried for his murder and convicted, but not punished under this indictment;(c) but they were convicted on an indictment for a conspiracy, and sentenced to be set in the pillory twice, imprisoned for seven years, and, until they found sureties for their good behavior for three years afterwards. (d)

*The words "whether he be a subject of Her Majesty or not, and

*968] whether he be within the Queen's dominions or not," were introduced in order 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 cautelâ 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 circumstance as would amount to murder if the killing were in England, is not murder in contemplation of the law of England.(e)

There is no doubt that it is not essential that the conspiracy should have been formed in England or Ireland. The Act, by sec. 68, includes conspiracies on the seas; 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. Where 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

(b) Rex v. Higgins, 2 East R. 5.

(c) See ante, p. 687.

(d) Rex . M Daniel, Forst. 121. It is not clear whether the indictment was for a conspiracy to murder Kidden, or another person, or to pervert the course of justice.

(e) 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 anywhere 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 law. 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.

furtherance of the conspiracy of the defendants, it was held that they were properly tried in Middlesex. (f) So 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.(g) Now, at common law, the criminal jurisdiction of counties was local. They [*969 were like *different kingdoms;(h) yet in conspiracy the jury could, as we have seen at common law take cognizance of acts done on the high seas or in an 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,(i) 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; (k) 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;"(7) 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.(m)

The 32 Hen. 8, c. 16, s. 9, is repealed by the 26 & 27 Vict. c. 125. This repeal is extremely to be regretted, as no one can foresee how many points may be raised in consequence of it. There is no doubt that the clause was introduced to do away with questions which had previously arisen. See the Year Book, 13 Edw. 4, p. 9, pl. 5, as to some of such questions.

If a question should be raised 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. 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. It has never been suggested, 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.

(f) Rex v. Brisac, 4 East R. 163.

[*970

(g) Rex v. Bowes, cited in Rex v. Brisac, supra.

(h) Rex v. Weston under Penyard, 4 Burr. R. 2507, per Lord Mansfield, C. J.

(i) 2 East R. 5; and see Reg. v. Bull, ante, p. 54.

(k) Rex v. Hensey, 1 Burr. €42.

(1) And see Ex parte Barronet, 1 E. & B. 1 (72 E. C. L. R.).

(m) 1 Hale P. C. 54.; Courteen's case, Hob. 270.