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beyond what public expediency, and the rules of justice can warrant. The case alluded to could not be dealt with as a capital offence, monstrous as were the circumstances under which it was committed, because Lord Ellenborough's act, 43 Geo. 3. c. 58. s. 1. includes only cases of shooting or attempting to shoot, and stabbing or cutting, the latter of which can be applied only to sharp weapons ; that it would be expedient to bring such cases as that of Howard's within the operation of the statute, we do not hesitate to say, but we think the remedy, as at present proposed, is worse than the disease.

Two sections of the present act are substituted for that part of Lord Ellenborough's act which related to the offences of stabbing, cutting, sliooting, &c. with intent to murder, maim, disfigure, or disable any person, or with intent to resist or prevent the lawful apprehension of the party himself, or any of his accomplices; as the shape in which these sections are put is

very different from the provisions of Lord Ellenborough's act, it may be better to give them at length : the first of these sections, which in the bill as it at present stands, is the eleventh section of the statute, is as follows:-“ Be it enacted, that if any person unlawfully and maliciously shall administer, or attempt to administer to any person, or shall cause to be taken by any person, any poison or other destructive thing, or shall unlawfully and maliciously attempt to drown or strangle any person, or shall unlawfully and maliciously shoot at any person, or shall by drawing a trigger, or in any other manner attempt to discharge any kind of loaded arms at any person ; or shall unlawfully and maliciously stab, cut, or wound any person, with intent in any of the cases aforesaid, to murder such person, every such offender, and every person counselling, aiding or abetting such offender, shall be guilty of felony, and being convicted thereof, shall suffer death as a felon.” On comparing this section with Lord Ellenborough's act, it will be found that attempts to administer poison, to drown or strangle, and wounding with intent to murder, are entirely

The twelfth section is as follows: And be it enacted,

new.

1

It should be observed that, as the intended law is at present only in the shape of à bill, the sections are not yet numbered ; we, therefore, can only refer to the clauses as at present divided.

that if any person unlawfully and maliciously shall shoot at any person, or shall by drawing a trigger, or in any other manner attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut or wound any person, with intent in any of the cases aforesaid, to maim, disfigure, or disable such person, or to do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of the party so offending, or of any of his accomplices, for any offence for which he or they may respectively be liable by law to be apprehended or detained, every such offender, and every person counselling, aiding or abetting such offender, shall be guilty of felony, and being convicted thereof shall suffer death as a felon.” The statute proceeds to enact, that if it shall appear on the trial that the offence was committed under such circumstances, that if death had ensued, the crime would not in law have amounted to murder, the defendant shall be acquitted of felony. The word "wound,” it is apprehended, will include weapons of all descriptions, whether sharp or not, and should that be the case, and this statute acted upon to the letter, the consequences will indeed be fearful: for every aggravated assault on a constable, where, as not unfrequently happens in alehouse-squabbles, the man of authority gets a broken head, will become not only a felony, but a capital felony, nay, not only a capital felony in the person actually inflicting the blow, but in all present aiding and abetting the resistance or prevention of his lawful apprehension. In cases where several persons are indicted for assaults on a constable, it generally happens that one or two only actually struck the prosecutor, but that the rest were present joining in the affray; and it is very often a difficult matter for the jury to decide, when a great number of persons have been assembled together, whether some of those who are indicted were actually engaged in resisting the constable, or merely lookers-on enjoying the row, or even taking the constable's part: this has always afforded a fair opportunity for a spiteful neighbour, and it may be added too, for an ill-natured justice of the peace, who wish for an opportunity to bring their victim within the clutches of the law, to promote (not to use a harsher expression) the conviction of an innocent man; and there can be no doubt that imprisonment is frequently awarded to those who have had no share in the breach of the peace; but hereafter, under the present statute, should blood be drawn, an indictment containing four or five counts, gravely stating that A. B., the principal offender, with a certain weapon, to wit, an iron poker of the value of sixpence (seized perhaps from the pot-house hearth), inflicted severe wounds of the length of two inches, and depth of half an inch, first with intent to murder, then to maim, then to disfigure and disable, and lastly with intent to resist and prevent the lawful apprehension of the said A. B.; and further stating, that C. D. and a dozen others were present counselling, aiding, abetting, comforting, assisting and maintaining the said A. B. the aforesaid felony to do and commit; on which indictment, if the jury are convinced that any of the persons were present, aiding or abetting the principal offender in resisting his lawful apprehension, they cannot conscientiously do otherwise than find such persons guilty of a crime which the law declares to be a capital felony. We think that in cases of this kind a line might be drawn between cases where there is express malice, and those where the law only implies malice; and that at least the jury might be enabled by their verdict to find ail or any of the defendants guilty of a misdemeanor only, so as to bring them within the operation of a subsequent section of this act, which makes a person assaulting with intent to resist or prevent the lawful apprehension or detainer of the party assaulting, or of any other person, liable to imprisonment for two years, and fine.

A clause was inserted in the House of Lords, we believe, at the suggestion of Lord. Tenterden, enabling the jury, on an indictment for an attempt to commit murder, except in cases of an attempt to poison, to find by their verdict that the principal by his own voluntary act desisted from carrying his purpose into full effect; in which case punishment of death should not be awarded, but the offender, his counsellors, aiders and abetters be deemed guilty of felony, and liable to imprisonment for not more than two years: this provision has been rejected by the House of Commons, and perhaps would be inconsistent with the severity of the section which we have last quoted; still however we think that some such encouragement might profitably be held out to the repentant murderer.

Few people, perhaps, but those who have been actually conversant in cases of this description, would think that the murderer would of his own free will desist from the completion of his horrid task; but it not unfrequently forms a feature honourable, even in the enormity of crime, to human nature, that the murderer, appalled with horror at his own guilty purpose, suffers himself to be overcome by the kinder feelings of his nature, and leaves his work unfinished : this, no doubt, would occur more frequently were such encouragement held out to the offender; since, under the present system, the criminal finds safety in the most effectual completion of his purpose, whereas in the other case he might hope, by a timely repentance, to escape the extreme penalty of the law.

No observations need at present be offered on the following section, which relates to the offence of administering drugs with intent to procure the miscarriage of women quick, or not quick, with child, as it is a simple re-enactment of the first two sections of 43 Geo. 3. c. 58. in a more concise form. By the fourth section of the same statute it was provided, that where a mother was indicted for the murder of her bastard child, the jury, if they acquitted the prisoner of the murder, might find that she was delivered of a bastard child and endeavoured to conceal its birth, the punishment of which offence was imprisonment for any term not exceeding two years. By the present act a woman may be indicted for the murder, and if acquitted of the murder, still found guilty under the same indictment for the concealment, or may be indicted at once for the concealment as a substantive offence and punished as heretofore. There was certainly an absurdity in indicting a person for murder, when the prosecutor might be well satisfied, from the evidence within his own reach, that the child had never been born alive ; it may be also observed that by the omission of the words “ which, if born alive, would have been a bastard,” married women may be indicted for the concealment of the birth of legitimate children, or found guilty thereof under an indictment for murder, whereas before a married woman, if acquitted of the murder, could not have been found guilty of the concealment.

With respect to bestiality, it will be quite sufficient to observe,

that by the substitution of the word “animal” for “beast," it is presumed the commission of an unnatural crime with a bird, (one or two instances of which, it is believed, are known to have occurred) and also with a reptile or fish, if such should occur, will henceforth be a capital offence. A very important alteration has been introduced, with regard to the proof of the completion of sodomy, bestiality, and rape, the reasons for which are stated in the act itself: And whereas upon trials for the crimes of buggery, and of rape, and of carnally abusing girls under the respective ages! hereinbefore mentioned, offenders frequently escape by reason of the difficulty of the proof which has been required of the completion of these several crimes; for remedy thereof, be it enacted, that it shall not be necessary, in any of those cases, to prove the actual emission of seed in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon proof of penetration only.” There can be no doubt that the inconvenience complained of in the act, was frequently felt, from the necessity of proving emission as well as penetration ; in all cases, except in rape, it was scarcely possible in any instance to prove the emission, and not always in rape ; but we think that the legislature, (unless hereafter that is to be considered rape, which was not so formerly, and that such is not the case we are persuaded from the fact, that only the difficulty of the proof is noticed) might in prudence have added that the criminal must be proved to have effected his purpose—for otherwise, what line can be drawn between rape and an assault with intent to commit a rape? If the man was either interrupted in the act, or voluntarily desisted, the offence was not complete, but he was merely guilty of an assault; and there can be no doubt that men, who make attempts on the virtue of women, hoping that they will yield without resorting to extreme violence, oftener than not, desist, on finding the impossibility of forcing the woman's consent. Of the expediency of inflicting the severest punishment on such offenders, we say nothing ; but we cannot but think this unqualified dispensation of the proof of

| Ten and twelve, the former of which, under any circumstances, is a capital felony ; the latter, though with the consent of the girl, a misdemeanor.

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