famine but coined filver is a commodity of a less delicate nature; and, though the actual quantity of it in Calcutta may have been reduced by various causes, yet there is just ground for a fufpicion, that the artifices of feveral combined and wealthy Sarràfs, or money-changers, have raised the discount, on the exchange of gold mohrs for filver, to fo enormous a degree as to affect all commercial tranfactions in Bengal. Now, though it be difficult to give pofitive proof of such intentions and combinations, yet, if legal evidence of them be fairly obtained, the dread of imprisonment would operate more forcibly on the monied natives, efpecially the Hindus, than the fear of a pecuniary mulet or of publick cenfure.

On the rules of law concerning homicide, we have unhappily had frequent occafions to deliver our concurrent opinions; but, a fatal error seeming ftill to prevail, that an actual intention to kill is effential to the crime of murder, I will recapitulate in few words the doctrine, on which I formerly enlarged. When you have certain evidence, that the perfon, who is faid to have been killed, is really dead (for that fact should in the first place be incontrovertibly proved) you will confider,whether any act of the perfon accufed was either the caufe, or the occafion, of the death; next, whether it was a lawful, or an un

lawful, act, and, if legal in itself, whether it was reasonable and moderate, or violent and cruel; if illegal, whether it was done in a sudden burst of paffion and with a weapon unlikely to destroy life, or coolly and with apparent malignity of dif pofition; for, in that cafe, if death enfue by an act, of which it might, though not actually intended, be the probable confequence, the offence will certainly be murder; the effence of which is not merely a design to kill, but a depraved and` malignant heart evinced by the coolnefs of the deed, or the danger of the inftrument ufed, or any other circumstances, by which malice may plainly appear: you will too foon be called upon to apply these principles in a variety of cases; and it furely imports our honour as a great nation, and becomes our character as juft men, that whoever deprives another of life should be openly tried, and either acquitted or condemned by thofe laws, from which he would have fought protection, if he had himself been injured.

Several natives have been committed for burglarious entries accompanied, in most instances,* with actual theft; and, fince the petit jury may' in those cases convict of the larciny alone, if the proof of a burglarious act be deficient or doubtful, it will be right, as in cafes of homicide, to find

your bills for the capital felony, when the evidence before you fhall fairly support the charge; but on fimple burglary, that is, when the felonious intent has not been executed, I must offer a few short observations. There are five ingredients in this offence, according to the five parts of its well-known definition, and relating to the circumstances of time, place, breaking, entry, and intent: the time must be night; the place, a dwelling-boufe, or parcel of it; the breaking, either with fome degree of force; or by Special implication; the entry, with part of the body at least, or with an inftrument used by it; and the intent, to commit a felony. In refpect of time and intent the law is very strict; rather less ftrict as to the place; and still less, it should seem, as to the breaking and entry: now, in the cafe of HERI and SANCAR (whofe crime, if they really be guilty, was highly aggravated by the grofs violation of their duty as publick watchmen) you will probably have no doubt in regard to the time and place, and very little as to their intent, if you believe that they had rubbed their faces and bodies with white powder to look like Europeans; but, as to the breaking and entry, there are some doubts, which nothing but full evidence can remove. They were caught, it has been fworn, on the terrace of a

detached houfe inhabited by a Hindu, and built in the fashion of Bengal; and it is now believed, that they began with climbing into a small room, or recefs, communicating with a private apartment, and used for the purposes of a water-closet in a London-house, but enclosed by a breastwork of bricks, and open at the top, the nature of the place in this climate not admitting, without extreme inconvenience and even danger to the family, of fuch a covering as would exclude fresh air: the cornice over the door of the apartment was broken, together with part of the wall, either by accident in laying hold of it, or by design to facilitate the ascent on the terrace, which was itself enclosed by a baluftrade. Although a terrace on a houfetop, in the warm regions of Afia, has been immemorially considered as an apartment of the house both for conversation in the evening and for flumber at night; although, like a varanda surrounded by rails or parapets, it is as much enclofed as the nature and design of it will allow; and although a nocturnal invafion either of a terrace or a varanda, in a country where doors and windows must be left open night and day, would occafion terror and generally be punished with instant death, if the affailed were better armed than the affailant; yet, in favour of life, it may forcibly

be urged, that the penal law of England ought not to be extended, by mere argument and analogy, to varandas and terraces; but whether the place, which has been defcribed, was actually a room in the house, and whether the prisoners broke and entered it with a felonious intent, will best be determined by the petit jury; while the court will confider, whether an entry by night into fuch a place and with fuch a defign be not as burglarious in the eye of our law as a mere defcent by a chimney in England. As to the defence of the two watchmen, that they were only difcharging their duty, instead of violating it, the law will never fuffer itself to be infulted by such pretences; and, if it be proved, that VISHNURAM, (who attempted by the authority of the Company's badge to procure the release of his fon-in-law and the affociate, and even gave reafon by his menaces to believe, that he meant to refcue them), knew of the felonious defign, you will confider him as an acceffory after the fact; or, as a principal in it, if he was constructively prefent by keeping guard near the house, while they broke and entered it. On this occafion I impute no blame to the two gentlemen, who act as high constables in Calcutta, except that they do not feem to have taken, as they certainly. fhould have done, from the low natives, whom