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any person or persons that hath not then (1) any weapon drawn (2), or that No. XVI. hath not then first (3) stricken the party which shall so stab or thrust, so

1 James I. 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).

III. Provided always, That this Act, or any thing therein contained, shall Killing anenot 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 giv

ing correction. of keeping the peace; nor shall extend to any person or persons which in 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.]

c. 21.

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

[Repealed 43 Geo.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

2 Geo. II. ed 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, any time after the twenty-fourth day of June, in the year of our Persons felo, Lord one thousand seven hundred and twenty-nine, shall be feloniously niously strick, stricken or poisoned upon the sea, or at any place out of that part of the en or poisoned kingdom of Great Britain called England, and shall die of the same stroke on the sea, &c. 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 the case is not within the statute; 1 East, time of the combat, or only to the instant ibid, and authorities there cited. when the stab is given?-Upon which the (4) The indictment ought to follow the judges were divided in Hunter's case, 3 Lev. words of the statute, and alledge that the 255, . It appears upon the whole, that if the prisoner stabbed the deceased, he having then party killed be at any one instant of time dar. no weapon drawn, nor having first stricken ; ing the controversy, ont of the protection of and, come semble, should alledge that the the statute, the case will not be governed by death took place within six months. It is the statute;' 2 East, P. C. c. 5. § 29.

usual to conclude contra formam statuti, but (2) If another person acting in concert with not necessary, as the statute only takes away the party killed had a weapon drawn, it is the benefit of clergy from an act which is fesufficient to take the case out of the statute; lony at common law. If the indictment as where a person stood with a sword un- charges that A. stabbed and B. aided and drawn to stop the prisoner from going out, abetted, and it is proved that B. stabbed and while a bailiff was sent for to arrest him; A. aided and abetted, there can be no judg. Buckner's case, Syles 463. A cudgel or other ment on the statute, but only judgment for thing proper for annoyance, is sufficient to manslaughter at common law. See 1 East, take a case out of the statute; East, ibid. ; c. 5. § 118. Foster, 300.

(5) For other cases of extenuation, which (3) In Byard's case, W. Jones, 340, this have been held to take the offence out of the was held to relate only to the case of the per- Act, see 1 East, c. 5. $29; concluding with son killed having stricken the first blow; but the opinion of Glyn C. J. in Buckner's case, contrary to this opinion, if such person has Syles, 467.--That, in order to bring a case stricken at all before the mortal blow given, within the statute, there ought to be malice.

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No. XVIII. be feloniously stricken or poisoned at any place within that part of Great 2 Geo. II.

Britain called England, and shall die of the same stroke or poisoning upon the sea, or at any place out of that part of the kingdom of Great Britain 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 indictJustices of ment shall be found; and that the justices of gaol delivery and Oyer and gaol delivery Terminer in the same county where such indictment shall be found, and shall proceed also any superior Court, in case such indictment shall be removed into such thereon, 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 ac

cessaries, happened in the same county where such indictment shall be and offenders found; and that every such offender, as well principal as accessary, shall shall answer

answer upon their arraignments, and have the like defences, advantages and and receive the exceptions (except challenges for the hundred) and shall receive the like like trial, &c. as if the mur

trial, judgment, order and execution, and suffer such forfeitures, pains and der had hap

penalties, as they ought to do, if such felonious stroke and death thereby pened in the ensuing, or poisoning and death thereby ensuing, and the offence of such county.

accessaries had happened in the same county where such indictment shall be found,

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[No. XIX.] 25 Geo. II. c. 37.–An Act for better prevents

ing the horrid Crime of Murder *. No. XIX. WHEREAS the horrid crime of murder has of late been more frequently

perpetrated than formerly, and particularly in and near the metropo* 25 Geo. II. • lis of this kingdom, contrary to the known humanity and natural genius c. 37. 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 Murderers to same, That from and after the first day of Easter term, in the year of our Lord be executed

one thousand seven hundred and fifty-two, all persons who shall be found the next day guilty of wilful murder, be executed according to law, on the day next but but one after

one after sentence passed, unless the same shall happen to be the Lord's day, sentence,

commonly called Sunday, and in that case on the Monday following. and their bo- II. And be it further enacted, by the authority aforesaid, That the body dies delivered of such murderer so convicted shall, if such conviction and execution shall to Surgeons' be in the county of Middlesex, or within the city of London or the liberties Hall.

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 áppoint, who shall give to the sheriffor 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 con

By 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,

viction and execution shall happen to be in any other county or other No. XIX. 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 C. 37. 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. Arid 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 or and appoint justices to appoint the body of any such criminal to be hung in chains : but the body to be that in no case whatsoever the body of any murderer shall be suffered to be hung in chains, buried; unless after such body shall have been dissected and anatomized as or anatomized. àforesaid; 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 åtrocious offences.

VI. And be it further enacted by the authority aforesaid, That from and Prisoner to be after such conviction, and judgment given thereupon, the gaoler or keeper confined to to whom such criminal shall be delivered for safe custody, shall confine some cell. 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.

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 should lapse, a new day may be appointed, of Swain and Jefferys, in 1752, that the time either by the High Court of Parliament, or of the execution and the delivery of the body by the King's Bench, the Parliament not to the surgeons to be dissected and anatomi- being then sitting, and the record being prozed should form part of the judgment; and perly removed; Lord Ferrer's case, 1765 ; that such judgment should be pronounced in Foster, 138; 1 East, P. C. Ch. 5. § 136. cases of petty treason as well as in other cases (2) semble that a sentence pursuant to this of murder. After sentence pronounced the Act may be passed by the judge at Nisi Prius, judge may, by special order, direct the hang- upon an indictment removed by Certiorari ing in chains. The statute extends to peers, unto the Court of King's Bench ; R. v. Tho. and in case the day appointed for execution mas, 4 M. & S. 442.

No. XIX. 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 administero necessaries ; the christian and surc. 37.

name 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 IX. And be it enacted by the authority aforesaid, That if any person or rescuing a persons whatsoever shall by force set at liberty, or rescue or attempt to murderer. 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. Penalty of X. And be it further enacted by the authority aforesaid, That if any rescuing the person or persons whatsoever shall, after such execution had, by force body after rescue or attempt to rescue the body of such offender out of the custody of execution. 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. This Act not XI. Provided always, and it is hereby enacted by the authority aforesaid, to extend to That nothing herein contained shall extend to repeal or alter so much of 11 Geo. I. c.

an Act made in the eleventh year of his late Majesty's reign, (intituled, 26,

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 Pre

vention 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.] No. XX.

WHEREAS divers cruel and barbarous outrages have been of late 43 Geo. III.

wickedly and wantonly committed in divers parts of England and ' Ireland, upon the persons of divers of his Majesty's subjects, either with

c. 58.

c. 58.

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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. * 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 punishment 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, ma

shall maliciliciously, and unlawfully present, point, or level any kind of loaded fire- ously shoot, or arms at any of his Majesty's subjects, and attempt, by drawing a trigger, attempt to or in any other manner, to discharge the same at or against his or their shoot at, or

shall stab or person or persons, (1) or shall wilfully, maliciously, and unlawfully stab or

cut, with incut (2) any of his Majesty's subjects, with intent in so doing, or by means tent to murder, thereof, to murder, or rob, or to maim, disfigure, or disable such his Ma- rob, or maim, jesty's subject or subjects, or with intent (3) to do some other grievous &c. any of his bodily harm to such his Majesty's subject or subjects, or with intent to ob- Majesty's substruct, 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, shall adminisor detained; or shall wilfully, maliciously, and unlawfully administer to,

ter poison (see or cause to be administered to or taken by any of his Majesty's subjects, any maliciously set

$ 2); or shall deadly poison, or other noxious and destructive substance or thing, with intent fire to any 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 witń. nary, 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. 466. S. C. 3 Price, 145. The first count states that A, with a certain (2) In a case at Chester assizes, before pistol, féloniously, wilfully, inaliciously, and Dallas, C. J. and Burton, J. it was ruled that unlawfully, did shoot at D. with intent felo- a blow with the handle of a windlass, which niously, wilfully, and of his malice afore- made an incision was not a cutting within thought, to kill and murder him; and that this Act. B. and C. were aiding and abetting A. An- (3) Upon a case at Chester, before Dallas, other count states that an unknown person c. J. and Burton, J. after respiting judgment feloniously, wilfully, maliciously, and unlaw- and consulting other judges, it was held that fully did shoot at D. with intent, feloniously,. an indictment for cutting with an intent to wilfully, and of his malice aforethought, to do some grievous bodily harm, without saying kill and murder him ; and that A, B, and C. in so doing or by means thereof,' was not were aiding and abetting the said unknown sufficient. person the felony aforesaid, in manner and (4) It is observable that the using an instrutorm aforesaid, to do and commit; and were ment, &c. with intent to cause abortion, which then and there knowing of and privy to the by section II. is a clergyable felony in case of committing of the said felony ; without alleg- the woman not being quick with child, is not ing that they were feloniously present, aid. noticed by this Act in the case of a woman ing, &c. The jury acquitted B. and C. and being quick with child. found A. guilty generally; but afterwards (5) An unstanıped memorandum on a poadded that he was not the person who fired licy of insurance, not admissible in support of the pistol: Held, that A. was well convicted an indictment upon this Act; R. v. Gibson, 1 on this indictment. Rex v. Towle, 2 Marsh. Taunt. 95.

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