mitigate guilt. For all homicide is presumed to be malicious, until the contrary appeareth upon evidence. (1) 25 The punishment of murder, and that of manslaughter, was formerly one and the same; both having the benefit of clergy; so that none but unlearned persons, who least knew the guilt of it, were put to death for this enor. mous crime. (m) But now by several statutes, (n) the benefit of clergy is taken away from murderers through malice prepense, their abettors, precurers, and counsellors. In atrocious cases it was frequently usual for the court to direct the murderer, after execution, to be hung upon a gibbet in chains near the place where the fact was committed: but this was [202]. no part of the legal judgment; and the like is still sometimes practised in the case of notorious thieves. This, being quite contrary to the express command of the Mosaical law, (o) seems to have been borrow. ed from the civil law which, besides the terror of the example, gives also another reason for this practice, viz. that it is a comfortable sight to the relations and friends of the deceased. (p) But now in England, it is enacted by statute 25 Geo. II. c. 37. that the judge, before whom any person is found guilty of wilful murder, shall pronounce sentence immediately after conviction, unless he sees cause to postpone it and shall, in passing sentence, direct him to be executed on the next day but one (unless the same shall be Sunday, and then on the Monday following), and that his body be delivered to the surgeons to be dissected and anatomized: (q) and that the 1 Fost. 255, : 26 m 1 Hal. P. C. 450. n 23 Hen. Vill. c. 1. 1 Edw. VI. c. 12. 4 & 5 Ph & M. c. 4. "The body of a malefactor shall not that day, that the land be not defiled." P "Famosos latrones, in his locis, ubi grassati sunt, furca figendos placuit; ut. et conspectu deterreantur alii, et solatio sit cognatis interemptorum eodem loco poena reddita, in quo latrones homicidia fecissent.** Ff. 48. 19. 28. § 15. q Fost. 107. (25) Francis Smith was indicted for murder at the Old Bailey, January 13, 1804. The neighbourhood of Hammersmith had been alarmed by what was supposed to be a ghost. The prisoner went out with a loaded gun with intent to apprehend the person who personated the ghost he met the deceased, who was dressed in white, and immediately discharged his gun and killed him. Chief Baron Macdonald, Mr. J. Rooke, and Mr. J. Lawrence were unanimously of opinion that the facts amounted to the crime of murder. For the person who represented the ghost, was only guilty of a misdemeanor (a nuisance), and no one would have had a right to have killed him, even if he could not otherwise have been taken The jury brought in a verdict of manslaughter, but the court said they could not receive that verdict; if the jury believed the witnesses, the prisoner was guilty of murder: if they did not believe them, they must acquit. Upon this, they found a verdict of guilty. Sentence of death was pronounced, but the prisoner was re prieved-Christian's note. (26) William Wyatt was convicted before Chambre, J. at Cornwall Lent assizes, 1812, upon an indictment for murder. The day of the week on which the trial took place was Thursday; but by mistake it was supposed to be Friday, and in passing sentence the execution was directed to be on the following Monday instead of Saturday. Immediately after sentence the court was adjourned till the next morning, without the intervention of any other business, and the error being discovered soon after the adjournment, the prisoner was directed to be brought up at the sitting of the court in the morning, which was accordingly done, and the sentence was given before any other business was entered upon, to be executed on the Saturday; an order was then made, pursuant to the authority given by the 4th and 7th sections of stat. 25 G. II. c. 37. to stay the execution and relax the restraints imposed by the act, in order to take the opinion of the judges upon the following questions. 1st Whether the statute so far as it requires the time of the execution to be expressed in pronouncing the sentence, is not to be considered as directory only, without invalidating the judgment when omitted, or preventing the entry of the proper judgment and record, specifying the time of execution. 2d. Whether supposing the specification of time to be a necessary act in pronouncing sentence, the error was not legally corrected by what was done in open court the next morning, the court not having proceeded to any other business whatever in the intermediate time. The judges on conference held, that the stat. 25 G. II. c. 87. is directory only so far as it requires the time of the execution to be expressed in pronouncing the sentence, and therefore the error in this case was rightly and legally corrected by the proceedings on the following morning, no other business having intervened between the conviction and pronouncing sentence. The prisoner was accordingly executed. 2 Burn J. 24. ed. 1044 Chitty judge may direct his body to be afterwards hung in chains, but in newist to be buried without dissection. And, during the short but awful interval between sentence and execution, the prisoner shall be kept alone, and sustained with only bread and water. But a power is allowed to the judge, upon good and sufficient cause, to respite the execution, and relax the other restraints of this act. By the Roman law, parricide, or the murder of one's parents or children, was punished in a much severer manner than any other kind of homicide. After being scourged, the delinquents were sewed up in a leathern sack, with a live dog, a cock, a viper, and an ape, and so cast into the sea. (r) Solon, it is true, in his laws, made none against parricide; apprehending it impossible that any one should be guilty of so unnatural a barbarity. (s) And the Persians, according to Herodotus, entertained the same notion, when they adjudged all persons who killed their reputed parents to be bastards. And, upon some such reason, we must account for the [203] omission of an exemplary punishment for this crime in our English laws; which treat it no otherwise than as simple murder, unless the child was also the servant of his parent. (t) For, though the breach of natural relation is unobserved, yet the breach of civil or ecclesiastical connexions, when coupled with murder, denominates it a new offence, no less than a species of treason, called parva proditio, or petit treason; which however is nothing else but an aggravated degree of murder; (v) although on account of the violation of private allegiance, it is stigmatized as an inferior species of treason, (u) And thus, in the ancient Gothic constitution, we find the breach both of natural and civil relations ranked in the same class with crimes against the state and the sovereign. (w) 28 Petit treason, according to the statute 25 Edw. III. c. 2., may happen three ways: by a servant killing his master, a wife her husband, or an ecclesiastical person (either secular or regular) his superior, to whom he owes faith and obedience. A servant who kills his master, whom he has left, upon a grudge conceived against him during his service, is guilty of petit treason for the traiterous intention was hatched while the relation sub. sisted between them; and this is only an execution of that intention. (x) So if a wife be divorced a mensa et thoro, still the vinculum matrimonii subsists; and if she kills such divorced husband, she is a traitress. (g) And a clergyman is understood to owe canonical obedience to the bishop who ordained him, to him in whose diocese he is beneficed, and also to the metropolitan of such suffragan or diocesan bishop and therefore to kill any of these is petit treason. (z) As to the rest, whatever has been said, or remains to be observed hereafter, with respect to wilful murder, is also applicable to the crime of petit treason, which is no other than murder in its most odious degree; except that the trial shall be as [204] in cases of high treason, before the improvements therein made by the statutes of William III. (a) But a person indicted of petit treason may t1 Hal, P. C. 380. u See pag. 75. r Ff. 41. 9. 9. s Cie. pro S. Roscio, § 25. v Foster, 107. S24. 336. w "Amnium gravissima censetur vis facta ab incolis in patriam, subditis in regem, liberis in parentes, maritis in uxores (et vice versa), servis in dominos, aut etiam ab homine in semel ipsam.” Stierub, de jure Goth. 1. 3. c. 3. x 1 Hawk. P. C. 89. 1 Hal. P. C, 380. y 1 Hal. P. C. 381. e Ibid. a Fost. 337. Fost. 107. (27) The judge, if he thinks it advisable, may afterwards direct the hanging in chains, by a special order to the sheriff; but it does not form any part of the judgment. (28) A servant killing his mistress or his master's wife, is within the act. 67 VOL. II. be acquitted thereof, and found guilty of manslaughter or murder: (b) and in such case it should seem that two witnesses are not necessary, as in case of petit treason they are.20 Which crime is also distinguished from murder in its punishment. The punishment of petit treason, in a man, is to be drawn and hanged, and in a woman to be drawn and burnt: (c) the idea of which latter punishment seems to have been handed down to us by the laws of the ancient Druids, which condemned a woman to be burnt for murdering her husband; (d) and it is now the usual punishment for all sorts of treasons committed by those of the female sex. (e) 30 Persons guilty of petit treason were first debarred the benefit of clergy, by statute 12 Hen. VII. c. 7. which has been since extended to their aiders, abettors, and counsellors, by statute 23 Hen. VIII. c. 1. and 4 & 5 P. & M. c. 4. CHAP. XV. OF OFFENCES AGAINST THE PERSONS OF HAVING in the preceding chapter considered the principal crime, or public wrong, that can be committed against a private subject, namely, by destroying his life; I proceed now to inquire into such other crimes and misdemeanors, as more peculiarly affect the security of his person, while living. Of these some are felonies, and in their nature capital; others are simple misdemesnors, and punishable with a lighter animadversion. Of the felonies, the first is that of mayhem. I. Mayhem, mayhemium, was in part considered in the preceding book, (a) as a civil injury: but it is also looked upon in a criminal light by the law, being an atrocious breach of the king's peace, and an offence tending to deprive him of the aid and assistance of his subjects. For mayhem is properly defined to be, as we may remember, the violently depriving another of the use of such of his members as may render him the less able in fighting, either to defend himself, or to annoy his adversary. (b) And therefore the cutting off, or disabling, or weakening a man's hand or finger, or striking out his eye or foretooth, or depriving him of those parts b Foster, 106. 1 Hal. P. C. 378. 2 Hal. P. C. 184. c 1 Hal. P. C. 382. 3 Inst. $11. b Britt. l. 1. c. 25. 1 Hawk. P. C. 111. (29) A person indicted for petit treason, may upon the evidence of one witness be convicted of murder, though acquitted of the petit treason. Radbourne's case, Leach, 363. (30) By the 30 Geo. III. c. 48. women shall no longer be sentenced to be burnt; but in all cases of high and petit treason they shall be condemned to be drawn and hanged, and in petit treason they shall be subject besides to the same judgment with regard to dissection and the time of execution as is directed by the 25 Geo. II. c. 37. in cases of murder. Soon after the passing of the 25 Geo. II. c. 37. the majority of the judges agreed, that in the case of men convicted of petit treason, the judgment introduced by that statute should be added to the common law judg→ ment for petty treason. Fost. 107. Chitty. the loss of which in all animals abates their courage, are held to be mayhems. But the cutting off his ear, or nose, or the like, are [206] not held to be mayhems at common law; because they do not weaken, but only disfigure him. 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: (c) which is still the law in Sweden. (d) But this went af terwards out of use: partly because the law of retaliation, as was formerly shewn, (e) is at best an inadequate rule of punishment; and partly because upon a repetition of the offence the punishment could not be repeated. So that, by the common law, as it for a long time stood, mayhem was only punishable with fine and imprisonment; (f) unless perhaps the offence of mayhem by castration, which our old writers held to be felony : "et sequitur aliquando poena capitalis, aliquando perpetuum exilium, cum omnium bonorum ademptione." (g) And this, although the mayhem was committed upon the highest provocation. (h) But subsequent statutes have put the crime and punishment of mayhem more out of doubt. For first, by statute 5 Henry IV. c. 5. to remedy a mischief that then prevailed of beating, wounding, or robbing a man, and then cutting out his tongue, or putting out his eyes, to prevent him from being an evidence against them, this offence is declared to be felony, if done of malice prepense; that is, as sir Edward Coke (i) explains it, voluntarily, and of set purpose, though done upon a sudden occasion. Next, in order of time, is the statute 37 Hen. VIII. c. 6. which directs, that if a man shall maliciously and unlawfully cut off the ear of any of the king's subjects, he shall not only forfeit treble damages to the [207] party grieved, to be recovered by action of trespass at common law, as a civil satisfaction; but also 101. by way of fine to the king, which was his criminal amercement. The last statute, but by far the most severe and effectual of all, is that of 22 & 23 Car. II. c. 1., called the Coventry act; being occasioned by an assault on sir John Coventry in the street, and slitting his nose, in revenge as was supposed) for some obnoxious words uttered by him in parliament. By this statute it is enacted, that if any person shall of malice aforethought, and by laying in wait, unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member of any other person, with intent to maim or to disfigure him; such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy. (k)1 Inst. 118.-Mes, si la pleynte soit faite de femme qu'avera talle a home ses membres, en tiel case perdra le femè la une meyn par jugement, come le membre dount ele avera trespasse. (Brit. c. 25.) d Stiernhook de jure Sueon. 1. 3. t. 3. f 1 Hawk. P. C, 112. g Brac. fol. 144. e See pag. 12. h Sir Edward Coke (3 Inst. 62.) has transcribed a record of Henry the Third's time, (Claus. 13 lien. III. m. 9) by which a gentleman of Somersetshire and his wife appear to have been apprehended and committed to prison, being indicted for dealing thus with John the monk, who was caught in adultery with the wife. i 3 Inst. 62. k On this statute Mr. Coke, a gentleman of Suffolk, and one Woodburn, a labourer, were indicted in 1722.; Coke for hiring and abetting Woodburn, and Woodburn, for the actual fact of shitting the nose of Mr. Crispe, Coke's brother-in-law. The case was somewhat singular. The murder of Crispe was intended, and he was left for dead, being terribly hacked and disfigured with a hedge bill; but he recovered. Now the bare intent to murder is no felony; but to disfigure with an intent to disfigure, is made so by this statute; on which they were therefore indicted. And Coke, who was a disgrace to the profession of the law, had the effrontery to rest his defence upon this point, that the assault was not committed with an intent to disfigure, but with an intent to murder; and therefore not within the statute. But the court held, that if a man attacks another to murder him with such an instrument as a hedge-bill, which cannot but endanger the disfiguring him; and in such attack happens not to kill, but only to disfigure him; he may be indicted on this statute; and it shall be left to the jury to determine whether it were not a design to murder by disfiguring, and consequently a malicious intent to disfigure as well as to murder. Accordingly the jury found them guilty of such previous intent to disfigure, in order to effect their principal intent to murder, and they were both condemned and executed. (State Trials, VI 21?) (1) To constitute the offence against which this provision was directed, there must be a maiming-a lying in wait-and an intent to disfigure. Thus much for the felony of mayhem: to which may be added the of fence of wilfully and maliciously shooting at any person in any dwelling There must be a maiming, and for this purpose a wound in the throat, or on the neck, will not suffice to bring the offender within the statute 1 Leach, 51. But to constitute a slitting the nose, it is not necessary that the nostrils should be perforated, for a wound ecross the upper part of the nose, on a level with the eyes, if it cuts the flesh, and divides the frontal vessels of the forehead, will fix the party by whom it was given, with the guilt of a capital felony. 1 Leach, 55. 6 Harg. St. T. 223. There must be a lying in wait. But it is not necessary that the prisoner should lurk in any particular place, and effect the mischief by suddenly rushing from it. It will suffice if, having formed an intention to maim, he takes a convenient opportunity of effecting his purpose. 1 Leach, 259. And, therefore, where the party injured was surrounded by a gang of thieves, and, in the scuffle, some of the party asked the rest where their knives were, on which the defendant struck at and maimed him, it was left to the jury to determine whether he had deliberate intention to wound, and they found him guilty. 1 Leach, 259. So where the prisoner was in concert with pickpockets, to cut or stab those who should oppose them, and, in prosecution of this intention, Ire ran to a person who had apprehended one of his associates, and maimed him with a knife, this was holden to be a lying in wait within the statute. 1 Leach, 57. n. (a). 1 East P. C. 397, 8. Where, however, the injury arises out of a sudden attack, though the prisoner is engaged in an unlawful purpose, the offence will not be capital. This was held where the defendant was stealing turnips, and on being accosted by a servant of the owner, struck him with an instrument of iron and wood, which he had with him. 1 Leach, 187. And where the commander of a press-gang wounded a person in the attempt to impress him, who resisted, not being liable to be taken, though antecedent malice was proved, it was held, that a sufficient lying in wait had not been shewn. 1 East P. C. 399. These cases shew the different construction put on the common and statute law, for in any of these cases, had death ensued, malice would have been implied, and the parties convicted of murder. There must be an intent to disfigure. But if the design was to murder by maiming, and the party, though wounded, recovers, this deeper guilt will be no excuse, for the primary intent to maim will not be merged in the ultimate design to kill. 6 Harg. St. Tr. 211. Russ. & R. C. C. 362. And the question of intent is matter of fact for the consideration of the jury, and not a point of law for the decision of the judge. Id. ibid. It is not necessary that the intention to maim should be directed against any particular individual; for if it be general against any person who may resist an unlawful purpose, the offender will be liable, though the party injured be a stranger. 1 Leach, 55. 1 East P. C. 396.; and see infra, cases in the 48 Geo. III. c. 58. But most of the nice constructions which have been put on the statute of Charles are now become unimportant, for the 43 Geo. III. c. 58. enacts, "that any person stabbing or cutting another with intent to murder, rob, maim, disfigure, or disable him, or to do him some other grievous bodily harm, or to oppose his own apprehension, or the lawful taking of an accomplice, shall be guilty of felony without benefit of clergy, provided that if under the circumstances, had the party been killed, it would not have been murder at the common law, the defendant shall be acquitted." This act only made the offence capital if committed in England or Ireland, and it was not so if committed at sea; Russ. & Ry. C. C. 286.; but now, by 1 Geo. IV. c. 90. s. 1. it is provided, that the crimes and offences mentioned in the 43 Geo. III. c. 58 which shall be committed on the high seas, out of the body of any country, shall be liable to the same punishment as if committed on land in England or Ireland, and shall be inquired of, as treasons, &c. are by 28 Hen. VIII. c. 15. See object of 43 Geo. III. c. 59. Holt C. N. P. 472. n. As to Scotland, see infra. As to what may be considered a cutting, within the act. it has been held, that where it is in ficted by an instrument capable of cutting, the case is within the act, though the instrument be not intended for cutting, nor ordinarily used to cut, but generally used to force open drawers, doors, &c. and though the intention was not to cut, but to inflict some other mischief, Russ. & Ry. C. C. 78. A striking over the face with the sharp or claw part of a hammer, is a sufficient cutting within the act, Russ. & Ry. C. C. 104; but if the blunt end be employed, the parties would be guilty only of a misdemeanor. Sir W. Jones, 452. Kel. 131. It has been held, that the striking with a square iron bar was not within the act, but in this case the wound was not incised, but contused and lacerated, Adam's case, O. B. sessions, 1808. 2 Stark. on Evidence, 923. n. (e). The nature of the wound, and not of the instrument, seems the proper test of decision. Id. Malice is an essential requisite to constitute the offence, see Leach, 323.; but it is not neces chry that express and particular malice against the individual cut should be proved, general malice is sufficient. An intent to do grievous bodily harm, is sufficient; though the wound is slight, and not in a vital part, the question is not what the wound is, but what wound was intended, 1 Py. & Moody, C. C. 95. ; and see 2 Stark. on Evidence, 924 and supra. The intention may be shown by previous malicious acts against the person wounded. Russ. & Ry. C. C. 581. Where the primary and principal intention of the prisoner was to commit one crime, but in order to effect it he intentionally did a grievous bodily harm, the case was considered within the act, Russ. & Ry. CC. 362. With respect to the words "grievous bodily harm,” it is not necessary to constitute the of" |