ALTHOUGH crime is still rife in the land of Britain, it is consolatory to know that, notwithstanding the recent relaxation of the terrors of the law, violence to the person is not so frequent an attendant on robbery as it was some twenty years since.

Formerly, burglaries were so often attended with murder, that not only was the government called on to offer large rewards for the discovery of offenders, but the crown so far extended its prerogative as to offer a free pardon to one criminal that the conviction of other accomplices might be effected.

These measures were deemed necessary for carrying out the ends of justice on the guilty; how far these objects have been attained by the exercise of the prerogative may be worth inquiry.

However satisfactory it may be to the public, who in all ages have generally been too fond of the ler talionis, to witness the execution of some human being for every murder committed, those who know the secrets of the prison-house, and are as it were behind the wicket, have many horrible facts to communicate connected with the modus operandi of king's evidence, especially some years since, from which many important inferences may be deduced as to the policy of continuing the practice.

The crime of murder, when made known, brings to the mind so many feelings of horror, and even dread, that the public are seldom easy until the vengeance of the law has been executed on the supposed offender. Out of this, perhaps morbid, anxiety for a victim to expiate the crime of murder on the scaffold has arisen the practice of receiving the evidence of an accomplice,—a practice which, it is much to be feared, has, on the whole, more thwarted than furthered the ends of justice.

We may probably be reminded, that the proclamations for promoting impeachments by accomplices always

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include the reservatory words, cept the actual murderer." But he who has been the actual cause of death is not always the most guilty party.

Let us illustrate this (to many) anomalous proposition by one actual case. We would not be understood, in the case we are about to give, to question the judgment of the court; our object is only to shew, that even in cases of murder it frequently happens, that when the authorities think they award the severest punishment to the most guilty in a gang of robbers, they are mistaken.

A., a known blood-thirsty character, proposed to C. and D. that they should join him in committing a burglary where a good booty was expected.

"I've no objection to the swag," said B.; "but if we go out together, mind I'll have no crokers (dead men). If we can't do our business without them, why, then, I'd sooner follow some other game." C. agreed with B., both consenting to join in the robbery, on the express condition of no violence being offered to any person.

The same night, the thieves entered into a house occupied by a single gentleman and his housekeeper, who was deaf. The booty not being found where it was expected, they agreed to proceed to the gentleman's sleeping-room, and search there, both B. and C. again protesting that they would have no violence used beyond that of restraining him from leaving the house to give an alarm.

with a small crow-bar. B. arrested his arm with one hand, while with the other he forced the brutal assailant from the spot. C., while this was going on, kept watch at the door, still commanding a view of the room; and, witnessing the attempt of A., rushed forward to assist B. in preventing a fatal result. The gentleman, then becoming alarmed, suddenly sprang out of bed, and seizing a sword which hung near him, made pass at B., whose back was towards him. The latter, fecling himself wounded in the shoulder, turned round, and with a blow from his elenched fist knocked the gentleman down. A., who had recovered himself, then turned round, and levelled a blow with the before-named bar, which he still held in his hand, at the fallen gentleman's head, which caused instant death.

B. and C. immediately denounced their comrade as a blood-thirsty villain, and left the house, resolving never again to be associated with him in any other scheme of robbery.

All the property stolen on that night was subsequently carried off by

A.

A few days after this murder was perpetrated, a proclamation was issued, offering a reward and promise of pardon to any accomplice, not the actual murderer, who would impeach his companion in the crime.

A. was the first to avail himself of this offer; and making out his own statement of the affair, caused the execution of C. and the transportation of B. These particulars were first collected from the malefactor that suffered; they were also confirmed by his companion, whose sentence of death was commuted to that of transportation; and, finally, were verified by the actual murderer, who a few years subsequently was executed at the Old Bailey for a similar brutal offence.

Thus, in a moral sense, the evidence of the truth of the statement is derived from a better source (if we consider the motives such characters have to withhold the truth) than any collected in open courts of law:

"Hora mortis, hora veritatis."

It must not be supposed that this ease has been selected as one of peculiarity or insulation, for the pur

VOL. XXIV. NO. CXXXIX.

pose of illustrating a particular instance of the effect of admitting the evidence of approvers in cases when their own lives are in danger. On the contrary, it is only one out of a number which can be attested by evidence equally forcible, if the statements and confessions of dying men may be adduced in support of their being founded on the basis of truth.

There may be persons who would remind us that, after all, no great mischief was wrought in the case we have cited, as all the parties, ab initio, went out to commit a crime that was punishable with death.

To reason with those who would justify a legal wrong on such grounds will be a waste of time. There were shades-nay, marked lines-of difference in the turpitude of the offenders. By the words of the proclamation, the authorities gave proof of their desire to distinguish these shades of lines of guilt. Did they effect their object? We have seen. The most guilty of the three escaped, and received, too, a large reward for his crime, that of murder, be it remembered. The next in guilt-he who knocked the murdered gentleman down, as he said, in self-defence -was transported. The third-a guilty man, certainly-who interposed to save the loss of life, was executed.

We need only ask whether it was the object of those who caused the proclamation to be issued, to reward and set at liberty, armed with indemnity for the past against punishment, a ruffian that had committed a murder, that even his accomplices denounced as being the effect of a blood-thirsty disposition. Certainly not. Then the authorities failed in their object. If it be asked, How often the exercise of the prerogative in similar cases succeeds? the reply may be, in proportion of one to five.

Touching the question of incidental murders, attendant on the commission of minor offences-that is, where robbers go out to commit a crime without any intention of taking life -a few remarks here may not be out of place. All homicides in law are included under three heads: 1, justifiable; 2, excusable; 3, felonious. However desirable it may be

D

that all laws should be as definite as they can be expressed in language, yet the attempt to trace and mark all the shades of difference which may occur under the three heads of homicide must in the very nature of things fail. Few cases, when all the circumstances are taken into consideration, are alike. There is also, arising out of the natural horror all mortals have of death, a great indisposition among all classes of mankind, in an investigation as to the causes of a violent death, to seek for the shades of difference, or acknowledge them when found. Murder is murder they affirm, and is unlike any other crime, having no extenuating points connected with it.

Most legal writers agree, that to constitute a murder, the killing must have a forethought, and be of malice prepense. Bacton, fol. 134, in his time, defined murder curiously enough :

"The secret killing of a man, when none besides the killer or his companions saw or knew it; so that it was not known who did it, nor fresh suit could be made after the doer; therefore, every such killing was called murder, because it could not be known whether it could be felony or not; for a man may be found dead that kills himself, or was lawfully killed by another. This name of murder came to be more horrid when it was secretly done, so that it made every man to consider of their own danger, and him that saw the dead body to boggle at it, as a horse will do at a dead horse."

By the fiction of our law, the judges have made out malice aforethought to consist in going out to commit any illegal act; and that in consequence, if death occur out of that act, it is a murder within the definition of the law.

St. Jermain, in his Doctor and Student, ridicules this reading of the law, and puts the following hypothetical case, illustrative of the fallacy of this reasoning :

'A boy enters an orchard, while out on a ramble, to steal apples, for the purpose of allaying his thirst, and climbs up a tree, the owner of which sees him, repairs to the spot with a cart-whip, and threatens the offender with a severe flogging. The boy, in his alarm and precipitancy to escape, falls from the tree on the man, and breaks his neck, or unavoidably strikes him on the head

with his iron-tipped boot, and thus causes his death. In such a case a trespass would have been committed, damage of which might be sixpence; but the falling was no trespass, yet under the construction of the law the boy must be hanged."

"That is law," says Sir E. Coke,a doctrine to which the judges of the present day respond una voce. So, if

a starving man, who snatches a penny loaf from a baker's shop, and in his speed to escape with it runs against another, and causes his death, he is guilty of murder.

Previously to the very judicious alterations of the law in cases of manslaughter, many convictions for murder occurred which strictly did not come within the meaning of the legal definition of that offence; while numbers escaped, or only received a minor punishment under charges of aggravated manslaughter, which juries thought did not amount to murder, as the definition of that crime was explained from the bench.

The number of crimes, both of enormity and minor kinds, has presented a sufficiently formidable array of delinquency at all periods of British history, without straining the law to increase the calendar, or holding out encouragement to the guilty for the commission of new crimes, by swearing away the lives of their less guilty companions, and painting the blotted surface of society wholly black.

However desirable it may be that the law should be acquitted, the public ought never to be led to exult in the conviction or punishment of an offender. They should be rather induced to deplore the necessity of punishment, and know as little as possible of the aggregate amount of crime in the country.

It is a mistaken policy which prompts judges to pull at the legal net-work, and strive to make it cover more space than legislators measured it for.

Reverting to the subject which is more immediately the object of this chapter, namely, Approvers, it must be the opinion of those who administer the laws, that the man who is the actual murderer of a fellow-creature in the presence of accomplices will be the first to avail himself of the offer to commit a perjury, and there