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C.O.885
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special laws which, owing to the fragmentary state in which Austin's notes were left, are not designated. Bacon would have had abortive attempts punishable by his "Curin Censoriæ," which were to have a jurisdiction supplementary to that of the ordinary Courts, and somewhat more arbitrary: "In Curiis Censoriis omnium magnorum criminum et scelerum actus inchoati et medii puniuntur, licet non sequatur effectus con- summatus: isque sit earum curiarum usus vel maximus; eum et severitatis intersit, initia scelerum puniri; et clementiæ, perpetrationem eorum (puniendo actus medios) intercipi.”—(De Aug. Sei., lib. viii, Aphor. 41.) No doubt the law should allow a lorus penitentiæ, as Mr. Austin and every other Jurist would advise; but the English law requires no repentance: whereas it may well be a question, not only whether repen- tance should not be required, but whether the person guilty of the attempt should not bear the burthen of proof that it was repentance which arrested consummation.
There is another ground commonly alleged for visiting attempts with lighter punishments than consummations. It is said that a victim of crime might sometimes be partially spared, if the eriminal knew that the risk he incurred would he of a lesser punishment should he stop short. But this argument seems to apply to the case of
a lesser offence attempted and consummated, rather than to an abortive attempt at a greater offence; for the cases will be very rare in which
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a criminal will begin by attempting the greater offence, and then, bethinking himself of the greater punishment, change his mind in the course of his action and attempt the lesser, For example, in the case of murder which is perhaps the case which mainly affects men's minds, it is by a mere technicality of English law that an assault with intent to rob resulting in the death of the person assaulted, is called by the same name of murder as an assault with intent to kill. It may well be that a criminal whose only object is to rob, will stop short of killing with a view to hazard only the lesser punishment. But it can hardly be, that a person whose object is to kill, will wound, not mortally, and then change his mind and hold his hand, because, having incurred a lesser punishment by his attempt, he would incur a greater in effecting his object. The substantial operation of the English law is to make the punishment the same whether death is or is not intended, provided death results; in this way making it the interest of the criminal, not only not to kill, but not to attempt to kill.
May it not be, therefore, that it is the confused terminology of the English law, designating as murder certain cases of killing without intent to kill, which has led people to suppose that there is any sufficient reason for assigning less punish- ments to attempts than to consummations, on the ground of affording an inducement to desist f
By the English law, before 1837, all aftempts to murder were punishable with death.
Then