wil
PUBLIC RECORD OFFICE
C.O.885
Reference :-
3 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
52
attempts attended with danger to the person; then only attempts attended with grievous bodily hurm; and now, finally, the attempt may leave the victim maimed and mangled to any extent, und if (unfortunately for himself) present death should not ensue, the law exempts the criminal from capital punishment.
more reasonable to remove It would seem capital punishment from killing without attempt- ing to kill, and award it for attempting to kill without killing.
At the same time, the burthen of proof that killing consummated in the commission of an unlawful act was not attempted, should be upon the offender.
If
As the law stands in the 24 and 25 Viet., cap. 100, sects. 1 to 15, attempts to murder are punishable with penal servitude for life as a maxi- mum, but may be punished with only two years' imprisonment with or without hard labour. murder were to be duly defined, and the term technical were not allowed to include some murders which have little or nothing in common with other murders, it would not be casy to to murder, imagine an unrelenting attempt
defeated merely by accident or miscarriage, which would deserve no more than two years' simple imprisonment; nor would it be easy, perhaps, to justify a measure of punishment for the abortive attempt in any way different from that awarded for the attempt consummated.
The same question arises in regard to diversa
53
other offences and attempts, dealt with in like manner by the 24 and 25 Vict., cap. 100; and I suppose there must be to be found somewhere, though I have not met with it, some exposition by jurists of the principle on which such legisla- tion proceeds. I have been unable to invent one ; and the light of nature scarcely shows the way to
it. Eminent jurists have, indeed, maintained that the punishment of crimes should not be appor- tioned to the measure of their moral guilt; and if so, the fact that an abortive and a consummated attempt are morally on a par, would not be ʼn But the reason for parity of punishment. standard which these jurists espouse as the para- mount and only standard-that of evil to be averted combined with adequacy to deter --seems, equally with that of moral retribution which they renounce, to demand the parity of punishment. If attempts are not adequately punished attempts will not be prevented; and there is no reason to infer that, because the inadequately punished attempts are the unsuccessful ones, therefore those which are not prevented will be unsuccessful : nor is there any reason to suppose that the punish- ment which is inadequately deterrent when awarded for a successful attempt will be adequately deter- rent when awarded for an unsuccessful attempt.
But for my own part I do not adopt the doctrine that Penal Law has no concern with moral retribution. I am of opinion that analytic habits of mind have constrained these jurists within lines of science which a larger philosophy
[254]
P