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OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.
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 misdemesnors, as more peculiarly affect the security of his person, while living.
Of these some are felonious, 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 volume, 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. 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 the loss of which in all animals abates their courage, are held to be mayhems. But the cutting off his ear, or nose, are not held to be mayhems at common law; because they do not weaken but only disfigure him.
By the ancient laws 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; which is still the law in Sweden. But this went afterwards out of use: partly
a See Vol. III. pag. 111,
b Brit. l. 1. c. 25. 1 Hawk. P.C 111.
c 3 Inst. 118.-Mes, si la pleynte soit faite de femme qu' avera tolle a home ses membres,
en tiel case perdra le feme la une meyn par jugement, come le membre dount ele avera trespasse. Brit. c. 25
d Stiernhook de jure Sueon. l. 3. t. 3.
because the law of retaliation, as was formerly shewn, 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; unless perhaps the offence of mayhem by castration, which all our old writers held to be felony; "et sequitur aliquando pœna capitalis, aliquando perpetuum exilium, cum omnium bonorum ademptione." 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 Hen. 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 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 party grieved, to be recovered by action of trespass at common law, as a civil satisfaction; but also 10l. 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.(25) called the Co
e See pag. 11.
f 1 Hawk. P. C. 112. 8 Bract. fol. 144.
h Sir Edward Coke (3 Inst. 62.) has transcribed a record of Henry the third's time, (Claus. 13 Hen. 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.
(25) This act is extended by the 43 G. III. c. 58. which enacts that persons who shall wilfully shoot at, stab or cut with intent to murder, reb, or maim, &c. any of his majesty's subjects; or maliciously set fire to any house, &c. shall suffer death.
ventry 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.
Thus much for the felony of mayhem: to which may be added the offence of wilfully and maliciously shooting at any person in any dwelling-house or other place; an offence, of which the probable consequence may be either killing or maiming him. This, though no such evil consequence ensues, is made felony without benefit of clergy by statute 9 Geo. I. c. 22. and thereupon one Arnold was convicted in 1723 for shooting at lord Onslow; but, being half a madman, was never executed, but confined in prison, where he died about thirty years after.
* 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 slitting 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 effroutery 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 whether it were not a design to murder by disfiguring, and cousequently a malicious intent to disfigure as to well as murder. Accordingly the jury foundthem 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. 212.
II. The second offence, more immediately affecting the personal security of individuals, relates to the female part of his majesty's subjects; being that of their forcible abduction and marriage; which is vulgarly called stealing an heiress. For by statute 3 Hen. VII. c. 2. it is enacted, that if any person shall for lucre take any woman, being maid, widow, or wife, and having substance either in goods or lands, being heir apparent to her ancestors, contrary to her will; and afterwards she be married to such misdoer, or by his consent to another, or defiled; such person, his procurers and abettors, and such as knowingly receive such woman, shall be deemed principal felons; and by statute 39 Eliz. c. 9. the benefit of clergy is taken away from all such felons, who shall be principals, procurers, or accessories before the fact.
In the construction of this statute it hath been determined, 1. That the indictment must allege that the taking was for lucre, for such are the words of the statute. 2. In order to shew this, it must appear that the woman has substance either real or personal, or is an heir apparent." 3. It must appear that she was taken away against her will. 4. It must also appear, that she was afterwards married, or defiled. And though possibly the marriage or defilement might be by her subsequent consent, being won thereunto by flatteries after the taking, yet this is felony, if the first taking were against her will:" and so vice versa, if the woman be originally taken away by her own consent, yet if she afterwards refuse to continue with the offender, and be forced against her will, she may from that time as properly be said to be taken against her will, is if she never had given any consent at all; for till the force was put upon her, she was in her own power. It is held that a woman, thus taken away and married, may be sworn and give evidence against the offender, though he is her husband de facto; contrary to the general rule of law; because he is no husband de jure, in case the actual marriage was also against her will. In cases indeed where the actual marriage is good, by the consent of the inveigled woman obtained after her forcible abduction, sir
Matthew Hale seems to question how far her evidence. should be allowed: but other authorities seem to agree, that it should even then be admitted; esteeming it absurd, that the offender should thus take advantage of his own wrong, and that the very act of marriage, which is a principal ingredient of his crime, should, by a forced construction of law, be made use of to stop the mouth of the most material witness against him.
An inferior degree of the same kind of offence, but not attended with force, is punished by the statutes 4 & 5 Ph. & Mar. c. 8. which enacts, that if any person, above the age of fourteen, unlawfully shall convey or take away any woman child unmarried, (which is held to extend to bastards as well as to legitimate children,) within the age of sixteen years, from the possession and against the will of the father, mother, guardians, or goveruors, he shall be imprisoned two years, or fined at the discretion of the justices; and if he deflowers such maid or woman child, or, without the consent of parents, contracts matrimony with her, he shall be imprisoned five years, or fined at the discretion of the justices, and she shall forfeit all her lands to her next of kin, during the life of her said husband. So that as these stolen marriages, under the age of sixteen, were usually upon mercenary views, this act, besides punishing the seducer, wisely removed the temptation. But this latter part of the act is now rendered almost useless, by provisions of a very different kind, which make the marriage totally void," in the statute 26 Geo. II. c. SS.
III. A third offence, against the female part also of his majesty's subjects, but attended with greater aggravations than that of forcible marriage, is the crime of rape, raptus mulierum, or the carnal knowledge of a woman forcibly and against her will. This, by the Jewish law,' was punished with death, in case the damsel was betrothed to another man; and in case she was not betrothed, then a heavy fine of fifty shekels was to be paid to the damsel's father, and she was to be the wife of the ravisher all the days of his life; without that power of divorce, which was in general permitted by the mosaic law.
The civil law" punishes the crime of ravishment with
4 Cro. Car. 488. State Trials, V.455. r Stra. 1162.
"Cod. 9. tit. 13.