proceeding in any Court having criminal jurisdiction in his Majesty's dominions at home or abroad, where such master, or other person as aforesaid, shall happen to be, although the place where the offence may be therein averred to have been committed (which averment is hereby required to be substantially according to the fact), shall appear to be out of the ordinary jurisdiction of such Court: and such Court is hereby authorized to issue a commission or commissions for the examination of any witnesses who may be absent, or out of the jurisdiction of the Court; and at the trial the depositions taken under such commission or commissions, if such witnesses shall be then absent, shall be received in evidence." By sec. 52. "Every person having the charge or command of any ship belonging to any subject of the United Kingdom, shall within the meaning and for the purposes of this Act, be deemed and taken to be the master of such ship, and every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board the same, shall in like manner be deemed and taken to be a seaman within the meaning and for the purposes of this act; and the term "ship" shall be taken and understood to comprehend every description of vessel navigated on the sea." 9 Geo. 4, c. 31, Child stealing. Not to extend to fathers taking their illegitimate children. SECT. II. Of Child Stealing. The 9 Geo. 4, c. 31, s. 24, enacts, "that if any person shall maliciously, either by force or fraud, lead or take away, or decoy or entice away, or detain, any child under the age of ten years, with intent to deprive the parent or parents, or any other person having the lawful care or charge of such child, of 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; or if any person shall, with any such intent as aforesaid, receive or harbour any such child, knowing the same to have been, by force or fraud, led, taken, decoyed, enticed away, or detained as hereinbefore mentioned; every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years, and if a male, to be once, twice, or thrice publicly or privately whipped, (if the Court shall so think fit,) in addition to such imprisonment: provided always, that no person who shall have claimed to be the father of an illegitimate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue hereof, on account of his getting possession of such child, or taking such child out of the possession of the mother, or any other person having the lawful charge thereof." (d) (d) The Irish Act, 10 Geo. 4, c. 34, s. 25, is word for word the same as this section. CHAPTER THE NINTH. OF ATTEMPTS TO MURDER; OF MAYHEM, OR MAIMING; AND OF DOING common law. ATTEMPTS to commit murder appear to have been considered as Offences at felonies in the earlier ages of our law: but that doctrine did not long prevail; and such attempts became, and still remain, at common law, punishable only as high misdemeanors. (a) Where an indictment is preferred for an assault with an intent to murder, it seems that the attempt as laid must be fully established, in order to support the indictment: thus, where a defendant was so charged in the first count of the indictment, Lord Kenyon, C. J., being of opinion, upon the facts given in evidence, that if death had ensued it would only have been manslaughter, directed the jury to acquit the defendant upon that count. (b) Mayhem, or the maiming of persons, was probably at one time an Mayhem. offence at common law of the degree of felony; as the judgment was membrum pro membro. (c) But this judgment afterwards went out of use; partly because the law of retaliation is at best an inadequate rule of punishment; and partly because, upon a repetition of the offence, the punishment could not be repeated. (d) The offence, therefore, appears to have been considered, in later times, as in the nature of an aggravated trespass; and the only judgment which now remains for it at common law is fine and imprisonment. (e) It is, however, a misdemeanor of the highest kind, and spoken of by Lord Coke as the greatest offence under felony. (f) A bodily hurt whereby a man is rendered less able in fighting, to defend himself or to annoy his adversary, is properly a maim at common law. (g) Therefore the cutting off, or disabling, or weakening a man's hand or finger, or striking out his eye or fore (a) Staund. 17. 1 East, P. C. c. 8, s. 5, p. 411. Rex v. Bacon, 1 Lev. 146. 1 Sid. 230, where the defendant, having been convicted for lying in wait to kill Sir Harbottle Grimstone, the Master of the Rolls, was sentenced to fine and im. prisonment, the finding surety for his good behaviour for life, and acknowledging his offence at the bar of the Court of Chancery. And see two precedents of indictments at common law, for misdemeanors in attempting to murder by poison, 3 Chit. Crim. L. 796. (b) Rex v. Mitton, Adjourned Sittings at Westminster, Oct. 1788. 1 East, P. Č. c. 8, s. 5, p. 411. And see Stark. Evid. tit. "Assuults," and the cases there cited. (d) 4 Blac. Com. 206. (e) Id. ibid. 1 Hawk. P. C. c. 55, s. 3. 1 East, P. C. c. 7, s. 1, p. 393. But it is observed, that perhaps mayhem by castra. tion might have continued an offence of higher degree, as all our old writers held it to be felony. 4 Blac. Com, 206. (f) Co. Lit. 127 a. (g) Staund. P. C. 3. Co. Lit. 126. 3 Inst. 62, 118. 1 Hawk. P. C. c. 55, s. 1. 4 Blac. Com. 205. 1 East, P. C. c. 7, s. 1, p. 393. A person maiming him self may be punished. No accessories in mayhem. Offences by statute. tooth, or depriving him of those parts, the loss of which, in all animals, abates their courage, are held to be maims; but the cutting off his ear, or nose, or the like, are not held to be maims at common law; because they do not weaken a man, but only disfigure him. (h) In order to found an indictment of mayhem the act must be done maliciously, though it matters not how sudden the occasion. (i) It is laid down that, by the common law, if a person maim himself in order to have a more specious pretence for asking charity, or to prevent his being impressed as a sailor, or enlisted as a soldier, he may be indicted; and, on conviction, fined and imprisoned. (k) For as the life and members of every subject are under the safeguard and protection of the King; so they are said to be in manu regis, to the end that they may serve the King and country when occasion shall require. (1) It should seem that there can be no accessories before the fact in mayhem, at common law; though there appears to have been some difference of opinion, or rather misapprehension, upon the subject. (m) For, supposing the offence to be in the nature of an aggravated trespass only, the rule will apply, that in crimes under the degree of felony there can be no accessories, but that all persons concerned therein, if guilty at all, are principals. (n) It does not appear to have been any where supposed, that there can be accessories after the fact in mayhem. (0) Attempts to murder, maiming, and the doing or attempting great bodily harm, were made highly penal by the enactments of several statutes now repealed. The 9 Geo. 1, c. 22, commonly called the Black Act, and which made the maliciously shooting at any person a capital offence, and the 26 Geo. 2, c. 19, s. 1, relating to the beating or wounding persons shripwrecked with intent to kill them, &c., or putting out false lights to bring a ship into danger, were repealed by the 7 & 8 Geo. 4, c. 27. The 5 Hen. 4, c. 5, relating to cutting tongues and putting out eyes; the 22 & 23 Car. 2, c. 1, called the Coventry Act, by which malicious maiming was made a capital offence; the 9 Anne, c. 16, which made it capital to attempt to kill, assault, wound, &c., a privy counseller, and also the 43 Geo. 3, c. 58, commonly called Lord Ellenborough's Act, were repealed by the 9 Geo. 4, c. 31, which is also repealed, as far as relates to the subjects contained in this chapter, by the 1 Vict. c. 85, (p) which came into operation on the 1st of October, 1837. (h) 1 Hawk. P. C. c. 55, s. 2. 4 Blac. Com. 205, 206. 1 East, P. C. c. 7, s. 1, p. 393. Bac. Ab. Maihem (A.) (i) 1 East, P. C. c. 7, s. 1, p. 393. (k) 1 Hawk. P. C. c. 55, s. 4, and Co. Lit. 127 a, where Lord Coke says, "In my circuit anno 1. Jacobi regis, in the county of Leicester, one Wright, a young, strong, and lustie rogue, to make himself impotent, thereby to have the more colour to begge, or to be relieved without putting himself to any labour, caused his companion to strike off his left hand; and both of them were indicted, fined, and ransomed." (1) Co. Lit. 127 a. Bract. lib. 1, fol. 6. Pasch. 19 Ed. 1. cor. Reg. Rot. 36, Northt. with intent to Sec. 2 enacts, "That whosoever (g) shall administer to or cause Punishment to be taken by any person any poison or other destructive thing, or for administershall (q) stab, cut, or wound any person, or shall by any means what- ing poison, &c. soever cause to any person any bodily injury dangerous to life, with commit murintent in any of the cases aforesaid to commit murder (r) shall be der. guilty of felony, and being convicted thereof shall suffer death." for offences with intent to commit murder, though no bodily injury effected. By sec. 3, "Whosoever (s) shall attempt to administer to any Punishment person any poison or other destructive thing, or shall (s) 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 (s) attempt to drown, suffocate, or strangle any person, with intent in any of the cases aforesaid to commit the crime of murder (t) shall, although no bodily injury shall be effected, be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years.' any By sec. 4, "Whosoever unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger or in other manner, attempt to discharge any kind of loaded arms at any person, or shall (u) 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 any person, (v) shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." (w) Punishment for cutting and maiming with intent to disfigure. By sec. 5, "Whosoever shall unlawfully and maliciously send Punishment for sending or deliver to or cause to be taken or received by any person any exexplosive subplosive substance, or any other dangerous or noxious thing, or shall stances. or cast or throw upon or otherwise apply to any person any corrosive throwing des person who shall unlawfully and maliciously administer or attempt to administer to any person, or who shall cause to be taken by any person, any poison or other destructive thing, or who shall unlawfully and maliciously attempt to drown, suffocate, or strangle any person, or who shall counsel, aid, or abet therein; and so much of the same acts or either of them as relates to any person who shall unlawfully and maliciously shoot at any person, or who shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or who shall unlawfully and maliciously stab, cut, or wound any person, or who shall unlawfully and maliciously throw or cast at or upon or otherwise apply to any person any corrosive or noxious liquid or substance, with any of the intents in the same acts mentioned, or who shall counsel, aid, or abet therein; and so much of the same acts as relates to the punishment of accessories after the fact to such of the felonies punishable under those acts as are hercinbefore referred to." (9)" Unlawfully and maliciously " in the VOL. I. 9 Geo. 4, c. 31, s. 11, are here omitted. " Unlawfully and maliciously ❞ were in the 9 Geo. 4, c. 31, s. 12. (t) "To murder such person" in the 9 Geo. 4, c. 31, s. 11. (u)"Unlawfully and maliciously" in 9 Geo. 4, c. 31, s. 12, are here omitted. (v) "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," in the 9 Geo. 4, c. 31, s. 12. (w) "Provided always that in case it shall appear on the trial of any person indicted for any of the offences above specified, that such acts of shooting, or of attempting to discharge loaded arms, or of stabbing, cutting, or wounding as aforesaid, were committed under such circumstances, that if death had ensued therefrom, the same would not in law have amounted to the crime of murder, in every such case the person so indicted shall be acquitted of felony," was in the 9 Geo. 4, c. 31, s. 12. A A A with intent to do bodily harm. tructive matter fluid or other destructive matter, with intent in any of the cases aforesaid to burn, maim, disfigure, or disable any person, or to do some other grievous bodily harm to any person, and whereby in any of the cases aforesaid any person shall be burnt, maimed, disfigured, or disabled, or receive some other grievous bodily harm, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years.”(x) By sec. 7, "In the case of every felony punishable under this act every principal in the second degree, and every accessory before the fact, shall be punishable with death or otherwise in the same manner as the principal in the first degree is by this act punishable; and every accessory after the fact to any felony punishable under this act shall, on conviction, be liable to be imprisoned for any term not exceeding two years." Punishment of accessories. Offences punishable by imprisonment. Court empowered to imprison for three years in certain cases. Offences committed within the jurisdiction of the Admiralty. The instrument must have been loaded with a bullet, &c., and levelled at the party. By sec. 8, "Where any person shall be convicted of any offence punishable under this act, for which imprisonment may be awarded, it shall be lawful for the Court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as to the Court in its discretion shall seem meet." By sec. 9, "On the trial of any person for any of the offences hereinbefore mentioned, or for any felony whatever, where the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding; and when such verdict shall be found, the Court shall have power to imprison the person so found guilty of an assault for any term not exceeding three years." By sec. 10, "Where any felony punishable under this act shall be committed within the jurisdiction of the Admiralty of England or of Ireland, the same shall be dealt with, inquired of, tried, and determined in the same manner as any other felony committed within that jurisdiction." (y) The following cases, which were decided upon the former statutes, may be here mentioned.-It was said, that upon an indictment on the 9 Geo. 1, c. 22, it was necessary to shew that the instrument was loaded with gunpowder, and also with a bullet, slug, or other deadly substance; but that it was sufficient if such facts appeared from the general circumstances of the case. (2) In a case where it did not appear whether the wounds which the prosecutor had received in his neck and chin were given by the wadding, or by a (x) This section was probably introduced in consequence of Rex v. Mountford, R. & M. C. C. R. 441, post, p. 726. (y) The act does not extend to Scotland, but it does to Ireland. By the Irish Act, 10 Geo. 4, c. 34, s. 8, "all persons conspiring, confederating, and agreeing to murder any person, shall be guilty of felony, and being convicted thereof shall suffer death as felons." By sec. 9, " every person who shall solicit, encourage, persuade, or endeavour to persuade, or who shall propose to any person, to murder any other person, shall be guilty of felony, and being convicted thereof shall suffer death as a felon." (z) 1 Hawk. P. C. c. 55. Of Shooting, &c., s. 9, citing Rex v. Elliott, Öld Bailey, 1787, |