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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 enormous crime (m). But now by several statutes (n), the benefit of clergy is taken away from murderers through malice prepense, their abettors, procurers, 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 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 (0), seems to have been borrowed 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) (39), and that his body be delivered to the surgeons to be dissected and anatomized (9): and that the judge may direct his body to be afterwards hung in chains (40), but in nowise 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 (41).

(m) 1 Hal. P. C. 450.

(n) 23 Hen. VIII. c. 1. 1 Edw. VI. c. 12. 4 & 5 Ph. & M. c. 4.

(o)" The body of a malefactor shall not remain all night upon the tree, but thou shalt in any wise bury him that day, that the land be not defiled." Deut. xxi. 23.

Upon this they found a verdict of guilty. Sentence of death was pronounced, but the prisoner was reprieved.

(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. (g) Fost. 107.

ed 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. 37, 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.

(39) 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 pro- 31. nouncing the sentence, is not to be considerVOL. II. 69

(40) 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. Fost. 107.

(41) The act now in force is 9 Geo. IV. c.

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 bas

tards. And, upon some such reason as this, we must account for [203] the 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 (u); although on account of the violation of private allegiance, it is stigmatized as an inferior species of treason (v). 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).

Petit treason (42), 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 traitorous intention was hatched while the relation subsisted 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 (y). 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 (2). As to the rest, whatever has been said, or remains to be observed hereafter, with respect to wilful murder, is also applic

able to the crime of petit treason, which is no other than murder [204] in its most odious degree: except that the trial shall be as 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 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 (43.) Which crime is also distinguished from murder in its punishment.

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The punishment of petit treason, in a man, is to be drawn and hanged, and in a woman to be drawn and burut (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) (44). 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.

CHAPTER XV

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 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 misdemeanors, and punishable with a lighter animadversion. Of the felonies, the first is that of mayhem.

1. 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 (6). 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, or the like, [206] are 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 after

(c) 1 Hal. P. C. 382. 3 Inst. 311.

(d) Cæsar de bell. Gall, l. 6, c. 18.

(e) See page 93.

(a) See book III. page 121.

(b) Britt. 1. 1, c. 25. 1 Hawk. P. C. 111.

(44) 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

(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. 1. 3, t. 3.

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 judg ment introduced by that statute should be added to the common law judgment for petit treason. Fost. 107.

wards 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 (ƒ); unless perhaps the offence of mayhem by castration, which all 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 [*207] *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 107. 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 lying 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 disfigure him; such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy (k) (1).

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(1) These statutes are now all repealed. "So much of the 5 H. IV. c. 5, as relates to cutting the tongues or putting out the eyes of any of the king's liege people, and to any assault upon the servant of a knight of the shire in parliament," by the Geo. IV. c. 31; the 37 H. VIII. c. 6, wholly, by the 7 and 8 Geo. IV. c. 27; and the 22 and 23 G. II. c. 1, wholly, by the 9 G. IV, c. 31: and the old law with respect to mayhem is now merged in the last

no felony; but to disfigure with an intent to dis figure, 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. 212.) mentioned statute, ss. 11 and 12 of which provide ample remedies for that offence. See those clauses, and the cases bearing upon them, set out in full, ante, 194, note (21). There are, however, two species of maiming not included in the 9 Geo. IV. c. 31, it having been previously found necessary to make them the subjects of distinct enactments; namely, injuries done to the persons of indi viduals, by means of wanton or furious dri

Thus much for the felony of mayhem: to which may be added the offence of wilfully and maliciously shooting at any person in any dwellinghouse 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 [*208] 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 (3), (4).

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 recieve such woman, shall be deemed principal felons; and by statute 30 Eliz. c. 9, the benefit of clergy is taken away from all such felons, who shall be principals, procurers, or accessaries before the fact (5).

ving, and by means of spring-guns and mantraps.

By the 1 Geo. IV. c. 4, it is enacted, that if any person whatever shall be maimed or otherwise injured by reason of the wanton and furious driving or racing, or by the wilful misconduct of any coachman or other person having the charge of any stagecoach or public carriage, such wanton or furious driving or racing, or wilful misconduct of such coachman or other person, shall be, and the same is thereby declared to be, a misdemeanor, and punishable as such by fine or imprisonment. Proviso, not to extend to hackney coaches drawn by two horses only, and not plying for hire as stagecoaches. This, it will be observed, applies only to cases where some injury short of death is inflicted. Where death ensues from the negligence or misconduct of such persons, the offence amounts either to murder or manslaughter. See Rex v. Walker, 1 C. and P. 320, ante, 182, note (7). t

By the 7 and 8 G. IV. c. 18, § 1, it is enacted, that if any person shall set or place, or cause to be set or placed, any spring-gun, man-trap, or other engine calculated to de

† Best, C. J., in his celebrated charge to the Wilts. Grand Jury, 1827, alluding to cases where death ensues from a collision of carriages, is reported to have said, "the collision of carriages may be either accidental or from the negligence of one or both of the drivers; and, in such case, it will be manslaughter. And I include within the term negligence, not only careless driving, but exciting the horses to such speed that they cannot be stopped or properly directed; the knowingly driving unbroken or vicious horses, overloading a coach, or using one that has insufficient strength or improper harness. But if a man

stroy human life, or inflict grievous bodily harm, with the intent that the same, or whereby the same, may destroy or inflict grievous bodily harm upon a trespasser, or other person coming in contact therewith, the person so setting or placing, or causing to be so set or placed, such gun, trap, or engine as aforesaid, shall be guilty of a misdemeanor (2).

(2) In New-York any one who, from premeditated design, evinced by lying in wait or otherwise, or with intent to commit a felony, purposely cuts out or disables the tongue of another, or puts out his eye, or slits his lip, or slits or destroys his nose, or cuts off or disables any limb or member, is punishable with imprisonment not less than seven years. (2 R. S. 664, § 27.)

(3) See note 24, p. 196, ante.

(4) This statute also has been wholly repealed by the 7 and 8 Geo. IV. c. 27, and the offence alluded to in the text is now punishable under the 9 Geo. IV. c. 31. ss. 11 and 12, vide ante, 194, note (21).

(5) These statutes are both wholly repealed by the 9 Geo. IV. c. 31, by § 19 of which it is enacted, that where any woman shall have any interest, whether legal or equitable, prereckless of consequences, either from mere wantonness, or from an angry feeling against the proprietor of a rival coach, but intentionally, drives one carriage against another, and thereby occasions the death of a person in either carriage, that is murder, although the driver did not contemplate so fatal an issue. Disguise it under what terms you will, whether it originates in rivalry, impatience, or mere wanton indifference to the safety of life, such furious driving manifests that atrocious wickedness of disposition which lawyers call malice prepense."

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