of this result, and if death is not actually caused, his offence is not punished in the same manner as his conduct deserved. The attempt to murder is established by proof of using the same means, as if murder had been committed, as by stabbing, shooting, beating, poisoning, strangling nevertheless there is less strictness in proving the malice, which is so important in all prosecutions for murder, and the punishment also falls short. The most usual case in attempts to murder, is where some wound or bodily injury has been caused, but nothing more.

:

Ancient law of lex talionis.-At this point we come upon an early remedy for maiming the body, which, however discordant with modern ideas, recommended itself in its time to nearly all barbarous and semi-barbarous nations as the most just, equal, and unexceptionable law that it could enter the mind of man to conceive. This was the lex talionis, which has prevailed in all places and times, and which still claims the allegiance of savage tribes. It has left traces which to this day are discernible in many forms common in every law of the world, and even linger in minds that have no obvious suspicion as to its parentage. The law of Moses recognised this ancient practice of retaliation, by which an eye was given for an eye, and a tooth for a tooth.1 And it was deemed at that period a just and equal law, for rich as well as poor, and was moreover confined to cases of deliberate maiming, and optional to the aggrieved person.2 This law was deemed also just by the Athenians, and was followed in the twelve tables of the Romans. The Ripuarians, Alamans, Lombards, and Frisians also had a tariff of punishments for every grade of assault and mutilation.5

3

1 Lev. xxiv. 19, 20; Exod. xxi. 23, 24, 25. 2 Michaelis, Com. § 240. 3 Petitt, Leg. Attic. vii. 3.

Tab. vii. In the Gentoo code the law of retaliation was in full force. In some cases it was pushed to extremes. To strike a Brahmin was punished with the loss of the limb. And if a magistrate was beaten or ill-used, the culprit had an iron spit put through him, and was roasted at the fire.-Gent. Code, c. 16. The Indians of the Rocky Mountains to this day look upon this law as admirable justice.1 Schooler. 263, 277. It also prevails in Alaska.-Dall's Alaska, 416. 5 About 1128 the charter of the French borough of Laon expressly laid down the lex talionis for that place.—3 Guizot, Civ. Fr. lect. 17.

The lex talionis in England. The lex talionis also flourished in this country. In Ethelbert's laws as well as King Alfred's, a minute scale of compensation was laid down for all kinds of bodily injuries, according as the blow exposed the bone or broke the skin, lamed a shoulder or pierced an ear or a nose, broke a collar-bone or front tooth, a toe or the nail of a toe.1 The law stated by Britton as to maiming was this:-If the wound was what was called a mayhem, that is, the loss of a member whereby a man was rendered less able to fight, as an eye, a hand, a foot, or fracture of a skull bone, or the loss of the fore teeth, this was a ground of appeal of mayhem. The fore teeth were deemed useful in battle, for if the wound cost nothing more serious than the molar teeth, or an ear, or the nose, these were deemed mere disfigurements, but not mayhems. This appeal was, however, an alternative remedy. In order to avoid the perilous risk, an action of trespass was competent. The risk of the appellor was, that if he failed, owing to some error in the record, he might be committed to prison and ordered to make satisfaction to the defendant, and also to the king. On the other hand, if the appellee was vanquished in battle, or was found guilty by a jury, the judgment was, that wound should be inflicted for wound, imprisonment for imprisonment, and trespass for trespass. And yet so early as the time of Edward I. the crown exercised the power of substituting for this punishment the imprisonment of the appellee in irons, till he made satisfaction to the plaintiffs, after which he was punished for breach of the peace also. If a writ of trespass issued for like mayhems, the judgment was the same. But in some cases, where, for example, a ribald or worthless person struck a knight or honourable person in time of peace without provocation, he was sentenced to lose the hand wherewith he had offended.2

Thus by the ancient law of England, he that maimed any man, whereby he lost any part of his body was sentenced to lose the like part, membrum pro membro.3 But this went afterwards out of use, partly because the law of retaliation is at best an inadequate rule of punishment, 1 Laws of Ethelbert, A.D. 597-616; Laws of K. Alfred, A.d. 871-901. 2 Britt. b. i. c. 26; Bract. 145; Fleta, 58-60. See the Gentoo law, ante, p. 412. 3 3 Inst. 118.

and partly because upon a repetition of the offence the punishment could not always be repeated. It was found necessary even at an early date to pass statutes to correct the vagueness of this popular law.

Defects of the lex talionis.—It is not to be wondered accordingly that the lex talionis should have failed to give satisfaction even in the earliest times. The philosophers have exposed its want of justice and equity, for, besides the impossibility of always imposing the same injury on the assailant, there is this essential difference, that in a premeditated and expected attack the pain is doubly and trebly greater than is endured in an unexpected and comparatively accidental injury. There was also the difficulty of settling the tariff of equivalent pains. The old Welsh law ably solved a difficult point in this respect, when it estimated the worth of the tongue as equal to that of all the other members, on the ground that it defended them.3

But the crucial case which must have always haunted the human mind with interminable doubt and uncertainty was the case of the one-eyed man. The inability to deal at all fairly with this peculiar difficulty could not fail to have much to do with the final abandonment of the principle altogether, seeing that no court, no judge, no legislature, no jury could ever satisfactorily dispose of it. When a two-eyed man put out the eye of a one-eyed man, Diodorus Siculus relates, that the Sybarite judges doubted whether both eyes, or only one, of the offender should be put out. And Solon was said to have shown great wisdom in expressly enacting, that both eyes should be put out.5 The wisest of men, however, could never hope to show sound and adequate reasons for preferring either of these solutions to the other.

Statutes against maiming and wounding. The legislature soon began to see, that bodily maimings required appropriate

1 Bract. fol. 144. 2 Michaelis, Com. § 242. 3 Vened. Code, b. iii. c. 23. 49Mem. Acad. Inser. 175. 5 Diog. Laert. Sol. ; Diod. Sic. 6 Another difficulty is admirably brought out by Bacon in his Apopthegms. A Flemish tiler once fell from the top of a house on a Spaniard and killed the latter, though he himself escaped. The next in blood demanded the lex talionis, whereupon the judge said he must go up to the top of the house and fall down on the tiler.Bac. Apopth. 70.

punishment of another kind than the first thoughts of mankind assigned to them. The first specific enactment against mutilation was 5 Henry IV. c. 5, which declared it to be felony maliciously to cut out the tongue or put out the eye; but other mutilations were not named, and could not, according to the rules of law, be implied.1 That statute was supposed to be passed, in order to put down a practice of robbers trying by this cruel expedient to make it impossible for their victims to give evidence against them. Coke, however, said that before that statute some kinds of mutilation were felonies at common law.2 By a statute of Henry VIII. if a man's ear was maliciously cut off, a fine was payable to the king, and treble damages recoverable by action.3 The Stabbing Act of 1 James I. c. 8, which took away the benefit of clergy from that offence, was supposed to have been caused by the practice of the Scotch, who, on flocking to England in that reign, used dirks in cases of provocation, to which mode of surprise the English were unaccustomed.1 Juries were then in the habit of reducing homicide, which was caused on verbal provocation, to manslaughter. And all the judges met at Serjeant's Inn in 1666, and held that that statute was only a declaration of the common law, and made to prevent the inconveniences of juries trying to extenuate murder by finding some provocation.5 And by the 22 & 23 Charles II. c. 1, called the Coventry Act, which was occasioned by an assault on Sir John Coventry in the street, and slitting his nose, in revenge, as was supposed, for some jest on Charles II. and Nell Gwynne, uttered by him in Parliament, such attacks on the nose, eyes, tongue, or lips, with intent to maim or disfigure, were declared felonies. Next came the Black Act, 9 George I. c. 22, which extended the same law to maliciously shooting, and other statutes of George III. and George IV. followed. All these have been swept away, and are replaced by the statute of 1861.6

These enactments now divide the subject into attempts at wounding, poisoning, &c., with intent to murder; and those which cause danger to life or bodily harm.

The

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1 5 Hen. IV. c. 5. 2 3 Inst. 62. 3 37 Hen. VIII. c. 6. ringt. Stat. 544; R. v Kerl, L. Raym. 139. Kel. 54; 18 St. Tr. 305. 6 24 & 25 Vic. c. 100.

mode is to single out for punishment the most usual means employed, in order to effect the general design or intent, or which produce the effect described.

The modern crimes of attempts to murder.—The statute enacts, that whosoever, with intent to commit murder, administers poison or other destructive thing, or by any means causes grievous bodily harm-or uses gunpowder to a building-or fires a ship or shoots with loaded arms -or attempts to drown or suffocate—all with such intent— or by any other means attempts to commit murder, is guilty of felony and is liable to penal servitude for life. The intent to murder here mentioned, coupled with the overt act of means being used or attempted, is the important and essential characteristic of this class of crimes; and as in the analogous case of actual murder, the intent need not be directed against the specific individual on whom it falls; for if by mistake the poison or the blow reach a third party in regular course of things, though not contemplated by the perpetrator, the guilt is the same.2 The intent to murder may be either a primary or secondary intent.3 And if it would have been murder if death had resulted, this will always be a good ground for inferring the intent to murder ;* but it must be an intent to murder, not merely to disable a person temporarily. The bare intent in the mind is not enough, unless some overt means be used, by way of carrying out that intent, as by shooting at the person, or laying poison for him, or doing acts of that malicious character. And not only must there be an overt act, that is, some means actually used to give effect to the intent, but those means must be reasonably calculated to effectuate the intent.6 Thus the means will be insufficient if a gun be not loaded when pointed, as, for example, if it be plugged, or the flint had fallen out ;7 or at

5

1 24 & 25 Vic, c. 100, §§ 11-15; or not less than five years' penal servitude. Ibid; 27 & 28 Vic. c. 47, or two years' imprisonment, hard labour, and solitary confinement.

2 R. v Smith, 25 L. J., M. C. 29; R. v Lynch, 1 Cox, C. C. 361 ; R. v Lewis, 6 C. & P. 161. 3 R. v Gillow, 1 Mood. 85; R. v Davis, 1 C. & P. 306. 4 R. v Jones, 9 C. & P. 258. 5 R. v Boyce, 1 Mood. 29. 6 Rv Empson, Leach, 224; R. v Lovel, 2 M. & Rob. 39. 7 R. v Carr, R. & Ry. 377; R. v Harris, 5 C. & P. 159; R. v Lewis, 9 C. & P. 523.