any person or persons that hath not then (1) any weapon drawn (2), or that hath not then first (3) stricken the party which shall so stab or thrust, so as the person or persons so stabbed or thrust shall thereof die within the space of six months then next following, although it cannot be proved that the same was done of malice forethought, yet the party so offending, and being thereof convicted by verdict of twelve men, confession, or otherwise according to the laws of this realm, shall be excluded from the benefit of his or their clergy, and suffer death as in case of wilful murder (4).

No. XVI.

1 James I.

c. 8.

III. Provided always, That this Act, or any thing therein contained, shall Killing anonot extend to any person or persons which shall kill any person or persons se ther in defence defendendo, or by misfortune, or in any other manner than as aforesaid; nor of himself, by shall extend to any person or persons which in keeping and preserving the misfortune, in peace shall chance to commit manslaughter, so as the said manslaughter be preserving the not committed wittingly, willingly and of purpose, under pretext and colour peace, or givof keeping the peace; nor shall extend to any person or persons which in ing correction. chastising or correcting his child or servant, shall besides his or their intent and purpose chance to commit manslaughter. This Act to continue until the end of the first session of the next Parliament (5). [Continued by

3 Car. I. c. 4. and 16 Car. I. c. 4.]

[No. XVII.] 21 James I. c. 27.-An Act to prevent the Destroying and Murthering of Bastard Children.

[Repealed 43 Geo. III. c. 58.]

2 Geo. II.

c. 21.

[No. XVIII.] 2 George II. c. 21.-An Act for the trial of Murders, in Cases where either the Stroke or Death only happens within that Part of Great Britain called England. FOR preventing any failure of justice and taking away all doubts touch- No. XVIII. ing the trial of murders in the cases hereinafter mentioned, Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That where any person, at any time after the twenty-fourth day of June, in the year of our Lord one thousand seven hundred and twenty-nine, shall be feloniously stricken or poisoned upon the sea, or at any place out of that part of the kingdom of Great Britain called England, and shall die of the same stroke or poisoning within that part of the kingdom of Great Britain called Eng- found by jurors land; or where any person, at any time after the twenty-fourth day of June, shall be good in the year of our Lord one thousand seven hundred and twenty-nine, shall against princi

(1) Q. Whether this relates to the whole time of the combat, or only to the instant when the stab is given?-Upon which the judges were divided in Hunter's case, 3 Lev. 255, It appears upon the whole, that if the party killed be at any one instant of time during the controversy, out of the protection of the statute, the case will not be governed by the statute;' 2 East, P. C. c. 5. § 29.

(2) If another person acting in concert with the party killed had a weapon drawn, it is sufficient to take the case out of the statute; as where a person stood with a sword undrawn to stop the prisoner from going out, while a bailiff was sent for to arrest him; Buckner's case, Syles 463. A cudgel or other thing proper for annoyance, is sufficient to take a case out of the statute; East, ibid.; Foster, 300.

(3) In Byard's case, W. Jones, 340, this was held to relate only to the case of the person killed having stricken the first blow; but contrary to this opinion, if such person has stricken at all before the mortal blow given,

Persons feloniously stricken or poisoned on the sea, &c. an indictment

the case is not within the statute; 1 East, ibid, and authorities there cited.

(4) The indictment ought to follow the words of the statute, and alledge that the prisoner stabbed the deceased, he having then no weapon drawn, nor having first stricken; and, come semble, should alledge that the death took place within six months. It is usual to conclude contra formam statuti, but not necessary, as the statute only takes away the benefit of clergy from an act which is felony at common law. If the indictment charges that A. stabbed and B. aided and abetted, and it is proved that B. stabbed and A. aided and abetted, there can be no judgment on the statute, but only judgment for manslaughter at common law. See 1 East, c. 5. § 118.

(5) For other cases of extenuation, which have been held to take the offence out of the Act, see 1 East, c. 5. §29; concluding with the opinion of Glyn C. J. in Buckner's case, Syles, 467,-That, in order to bring a case within the statute, there ought to be malice.

[Part V No. XVIII. be feloniously stricken or poisoned at any place within that part of Great Britain called England, and shall die of the same stroke or poisoning upon 2 Geo. II. the sea, or at any place out of that part of the kingdom of Great Britain c, 21. called England; in either of the said cases an indictment thereof found by the jurors of the county in that part of the kingdom of Great Britain called pal and acces- England, in which such death, stroke or poisoning shall happen respectively saries. as aforesaid, whether it shall be found before the coroner upon the view of such dead body, or before the justices of the peace, or other justices or commissioners, who shall have authority to inquire of murders, shall be as good and effectual in the law, as well against the principals in any such murder, as the accessaries thereunto, as if such felonious stroke and death thereby ensuing, or poisoning and death thereby ensuing, and the offence of such accessaries, had happened in the same county where such indictment shall be found; and that the justices of gaol delivery and Oyer and Terminer in the same county where such indictment shall be found, and also any superior Court, in case such indictment shall be removed into such superior Court, shall and may proceed upon the same in all points, as well against the principals in any such murder, as the accessaries thereto, as they might or ought to do, in case such felonious stroke and death thereby ensuing, or poisoning and death thereby ensuing, and the offence of such accessaries, happened in the same county where such indictment shall be found; and that every such offender, as well principal as accessary, shall answer upon their arraignments, and have the like defences, advantages and exceptions (except challenges for the hundred) and shall receive the like trial, judgment, order and execution, and suffer such forfeitures, pains and penalties, as they ought to do, if such felonious stroke and death thereby ensuing, or poisoning and death thereby ensuing, and the offence of such accessaries had happened in the same county where such indictment shall be found,

Justices of gaol delivery shall proceed thereon,

and offenders

shall answer

and receive the

like trial, &c. as if the murder had happened in the county.

No. XIX. 25 Geo. II. c. 37.

Murderers to be executed the next day but one after sentence,

and their bodies delivered to Surgeons'

Hall.

[No. XIX.] 25 Geo. II. c. 37.-An Act for better prevent, ing the horrid Crime of Murder *.

WHEREAS the horrid crime of murder has of late been more frequently

perpetrated than formerly, and particularly in and near the metropolis of this kingdom, contrary to the known humanity and natural genius of the British nation: And whereas it is thereby become necessary, that 'some further terror and peculiar mark of infamy be added to the punishment of death now by law inflicted on such as shall be guilty of the said heinous offence;' May it please your most excellent Majesty that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the first day of Easter term, in the year of our Lord one thousand seven hundred and fifty-two, all persons who shall be found guilty of wilful murder, be executed according to law, on the day next but one after sentence passed, unless the same shall happen to be the Lord's day, commonly called Sunday, and in that case on the Monday following.

II. And be it further enacted, by the authority aforesaid, That the body of such murderer so convicted shall, if such conviction and execution shall be in the county of Middlesex, or within the city of London or the liberties thereof, be immediately conveyed by the sheriff or sheriffs, his or their deputy or deputies, and his or their officers, to the hall of the Surgeons' Company, or such other place as the said company shall appoint for this purpose, and be delivered to such person as the said company shall depute or appoint, who shall give to the sheriff or sheriffs, his or their deputy or deputies, a receipt for the same; and the body so delivered to the said company of Surgeons, shall be dissected and anatomized by the said Surgeons, or such person as they shall appoint for that purpose: And in case such conBy the Irish statute, 36 Geo. III, c. 27, encouraging, persuading, or endeavouring to conspiring to murder any person-and by stat. encourage or persuade to murder, are made 38 Geo. III. c. 57, proposing to, soliciting, capital felonies.

*

No. XIX.

c. 37.

viction and execution shall happen to be in any other county or other place in Great Britain, then the judge or justice of assize, or other proper 25 Geo. II. judge, shall award the sentence to be put in execution the next day but one after such conviction (except as is before excepted), and the body of such murderer shall in like manner be delivered by the sheriff, or his deputy, and his officers, to such surgeon as such judge or justice shall direct for the purpose aforesaid (1).

III. And be it further enacted, by the authority aforesaid, That sen- Sentence to be tence shall be pronounced in open court immediately after the conviction pronounced of such murderer, and before the Court shall proceed to any other busi- immediately. ness, unless the Court shall see reasonable cause for postponing the same; in which sentence shall be expressed not only the usual judgment of death, but also the time appointed hereby for the execution thereof, and the marks of infamy hereby directed for such offenders, in order to impress a just horror in the mind of the offender, and on the minds of such as shall be present, of the heinous crime of murder (2).

IV. Provided always, and be it enacted, That after such sentence pro- Justice may nounced as aforesaid, in case there shall appear reasonable cause, it shall stay execuand may be lawful to and for such judge or justice, before whom such cri- tion; minal shall have been so tried, to stay the execution of the sentence, at the discretion of such judge or justice, regard being always had to the true intent and purpose of this Act.

V. Provided also, That it shall be in the power of any such judge of justices to appoint the body of any such criminal to be hung in chains: but that in no case whatsoever the body of any murderer shall be suffered to be buried; unless after such body shall have been dissected and anatomized as aforesaid; and every such judge or justice shall, and is hereby required to direct the same either to be disposed of as aforesaid, to be anatomized, or to be hung in chains, in the same manner as is now practised for the most atrocious offences.

VI. And be it further enacted by the authority aforesaid, That from and after such conviction, and judgment given thereupon, the gaoler or keeper to whom such criminal shall be delivered for safe custody, shall confine such prisoner to some cell, or other proper and safe place within the prison, separate and apart from the other prisoners; and that no person or persons whatsoever, except the gaoler or keeper, or his servants, shall have access to any such prisoner, without licence being first obtained for that purpose under the hand of such judge or justice, before whom such offender shall have been tried, or under the hand of the sheriff, his deputy or under sheriff.

and appoint

the body to be hung in chains, or anatomized.

Prisoner to be confined to some cell.

VII. Provided always, That in case any such judge or justice shall see Judge may cause to respite the execution of such offender so condemned as aforesaid, relax. such judge or justice may relax or release any or all of the restraints or regulations hereinbefore or hereinafter directed to be observed by the gaoler or keeper of the prison where such prisoner shall be confined, by any licence in writing signed by such judge or justice for that purpose, for and during the time of such stay of execution; any thing hereinbefore contained to the contrary thereof notwithstanding.

VIII. And be it further enacted by the authority aforesaid, That after Prisoner fed sentence passed as aforesaid, and until the execution thereof, such offender with bread and shall be fed with bread and water only, and with no other food or liquor water except, whatsoever (except in case of receiving the sacrament of the Lord's Supper, &c.

(1) It was agreed by the judges in the case of Swain and Jefferys, in 1752, that the time of the execution and the delivery of the body to the surgeons to be dissected and anatomized should form part of the judgment; and that such judgment should be pronounced in cases of petty treason as well as in other cases of murder. After sentence pronounced the judge may, by special order, direct the hanging in chains. The statute extends to peers, and in case the day appointed for execution

should lapse, a new day may be appointed, either by the High Court of Parliament, or by the King's Bench, the Parliament not being then sitting, and the record being properly removed; Lord Ferrer's case, 1765; Foster, 138; 1 East, P. C. Ch. 5. § 136.

(2) Semble that a sentence pursuant to this Act may be passed by the judge at Nisi Prius, upon an indictment removed by Certiorari unto the Court of King's Bench; R. v. Thomas, 4 M. & S. 442.

No. XIX.

c. 37.

and except in case of any violent sickness or wound, in which case some known physician, surgeon or apothecary may be admitted by the gaoler or 25 Geo. II. keeper of the said prison to administer necessaries; the christian and surname of such physician, surgeon or apothecary, and his place of abode, being first entered in the books of such prison or gaol, there to remain), and in case such gaoler or prison-keeper shall offend against or neglect to put in execution any of the directions or regulations hereby enacted to be observed, such gaoler or prison-keeper shall for such offence forfeit his office, and be fined in the sum of twenty pounds, and suffer imprisonment until the same be paid.

Penalty of

rescuing a murderer.

Penalty of rescuing the body after execution.

This Act not

to extend to 11 Geo. I. c. 26,

No. XX. 43 Geo. III.

c. 58.

IX. And be it enacted by the authority aforesaid, That if any person or persons whatsoever shall by force set at liberty, or rescue or attempt to rescue or set at liberty, any person out of prison who shall be committed for, or found guilty of murder, or rescue or attempt to rescue any person convicted of murder going to execution, or during execution, every person so offending shall be deemed, taken and adjudged to be guilty of felony, and shall suffer death without benefit of clergy.

X. And be it further enacted by the authority aforesaid, That if any person or persons whatsoever shall, after such execution had, by force rescue or attempt to rescue the body of such offender out of the custody of the sheriff or his officers, during the conveyance of such body to any of the places hereby directed, or shall by force rescue or attempt to rescue such body from the Company of Surgeons, or their officers or servants, or from the house of any surgeon where the same shall have been deposited in pursuance of this Act; every person so offending shall be deemed and adjudged to be guilty of felony, and shall be liable to be transported to some of his Majesty's colonies or plantations in America for the term of seven years, in like manner as is directed by the Laws now in force relating to the transportation of felons; and shall be subject to the like punishment and methods of conviction, in case of returning into, or being found at large within Great Britain, within the said term of seven years, in all respects, as by Law other felons are subject to, in case of unlawfully returning from transportation.

XI. Provided always, and it is hereby enacted by the authority aforesaid, That nothing herein contained shall extend to repeal or alter so much of an Act made in the eleventh year of his late Majesty's reign, (intituled, An Act for the more effectual disarming the Highlands in that part of Great Britain called Scotland; and for the better securing the peace and quiet of that part of the Kingdom,) as relates to the suspension of the execution of persons convicted of capital offences within that part of Great Britain called Scotland, for the respective times in the said Act mentioned; any thing hereinbefore mentioned to the contrary notwithstanding.

[No. XX.] 43 George III. c. 58.-An Act for the further Prevention of malicious shooting, and attempting to discharge loaded Fire-Arms, stabbing, cutting, wounding, poisoning, and the malicious using of Means to procure the Miscarriage of Women; and also the malicious setting Fire to Buildings; and also for repealing a certain Act, made in England in the twenty-first Year of the late King James the First, intituled, An Act to prevent the destroying and murthering of Bastard Children; and also an Act made in Ireland in the sixth Year of the Reign of the late Queen Anne, also intituled, An Act to prevent the destroying and murthering of Bastard Children; and for making other Provisions in lieu thereof.-[24th June 1803.]

WHEREAS divers cruel and barbarous outrages have been of late wickedly and wantonly committed in divers parts of England and 'Ireland, upon the persons of divers of his Majesty's subjects, either with

6

an intent to murder, or to rob, or to maim, disfigure, or disable, or to No. XX. do other grievous bodily harm to such subjects: And whereas the provi

sions now by Law made for the prevention of such offences have been 43 Geo. III.

c. 58.

shall maliciously shoot, or attempt to shoot at, or

shall stab or cut, with in

'found ineffectual for that purpose: And certain other heinous offences, committed with intent to destroy the lives of his Majesty's subjects by poison, or with intent to procure the miscarriage of women, or with intent by burning to destroy or injure the buildings and other property of his Majesty's subjects, or to prejudice persons who have become insurers of or upon the same, have been of late also frequently committed, but no adequate means have been hitherto provided for the prevention and pu'nishment of such offences:' Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That if any person or persons, from and Persons in after the first day of July, in the year of our Lord one thousand eight hun- England or dred and three, shall, either in England or Ireland, wilfully, maliciously, Ireland who and unlawfully shoot at any of his Majesty's subjects, or shall wilfully, maliciously, and unlawfully present, point, or level any kind of loaded firearms at any of his Majesty's subjects, and attempt, by drawing a trigger, or in any other manner, to discharge the same at or against his or their person or persons, (1) or shall wilfully, maliciously, and unlawfully stab or cut (2) any of his Majesty's subjects, with intent in so doing, or by means thereof, to murder, or rob, or to maim, disfigure, or disable such his Majesty's subject or subjects, or with intent (3) to do some other grievous bodily harm to such his Majesty's subject or subjects, or with intent to obstruct, resist, or prevent the lawful apprehension and detainer of the person jects; or to or persons so stabbing or cutting, or the lawful apprehension and detainer prevent arrests of any of his, her, or their accomplices for any offences for which he, she, of culprits ; or or they may respectively be liable by Law to be apprehended, imprisoned, or detained; or shall wilfully, maliciously, and unlawfully administer to, or cause to be administered to or taken by any of his Majesty's subjects, any deadly poison, or other noxious and destructive substance or thing, with intent such his Majesty's subject or subjects thereby to murder, or thereby to cause house, &c. and procure the miscarriage of any woman then being quick with child; (4) shall be guilty or shall wilfully, maliciously, and unlawfully set fire to any house, barn, gra- of felony withnary, hop oast, malthouse, stable, coach house, outhouse, mill, warehouse, out clergy. or shop, whether such house, barn, granary, hop oast, malthouse, stable, coach house, outhouse, mill, warehouse, or shop, shall then be in the possession of the person or persons so setting fire to the same, or in the possession of any other person or persons, or of any body corporate, with intent thereby to injure or defraud (5) his Majesty, or any of his Majesty's

(1) Indictment on stat. 43 Geo. III. c. 58. The first count states that A, with a certain pistol, féloniously, wilfully, inaliciously, and unlawfully, did shoot at D. with intent feloniously, wilfully, and of his malice aforethought, to kill and murder him; and that B. and C. were aiding and abetting A. Another count states that an unknown person feloniously, wilfully, maliciously, and unlawfully did shoot at D. with intent, feloniously,. wilfully, and of his malice aforethought, to kill and murder him; and that A. B. and C. were aiding and abetting the said unknown person the felony aforesaid, in manner and form aforesaid, to do and commit; and were then and there knowing of and privy to the committing of the said felony; without alleging that they were feloniously present, aiding, &c. The jury acquitted B. and C. and found A. guilty generally; but afterwards added that he was not the person who fired the pistol: Held, that A. was well convicted on this indictment. Rex v. Towle, 2 Marsh.

466. S. C. 3 Price, 145.

tent to murder, rob, or maim, &c. any of his Majesty's sub

shall administer poison (see § 2); or shall

maliciously set fire to any

(2) In a case at Chester assizes, before Dallas, C. J. and Burton, J. it was ruled that a blow with the handle of a windlass, which made an incision was not a cutting within this Act.

(3) Upon a case at Chester, before Dallas, C. J. and Burton, J. after respiting judgment and consulting other judges, it was held that an indictment for cutting with an intent to do some grievous bodily harm, without saying in so doing or by means thereof,' was not sufficient.

(4) It is observable that the using an instrument, &c. with intent to cause abortion, which by section II. is a clergyable felony in case of the woman not being quick with child, is not noticed by this Act in the case of a woman being quick with child.

(5) An unstamped memorandum on a policy of insurance, not admissible in support of an indictment upon this Act; R. v. Gibson, 1 Taunt. 95.