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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 abetlors, 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 com- [*202] mitted: 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 (o), 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.
“ Famosos latrones, in his locis, ubi grassati (n) 23 Ken. VIII. c. 1. 1 Edw. VI. c. 12. 4 & 5 sunt, furca figendos placuit : ut, et conspectu deterPh. 4 M. c. 4.
reantur alii, et solatio sit cognatis interemptorum (0) “ The body of a malefactor shall not remain eodem loco poena reddita, in quo latrones homicidia all night upon the tree, but thou shalt in any wise fecissent." Ff. 48. 19. 28, o 15. bury him that day, that the land be not defiled." 19) Fost. 107. Deut. xxi. 23.
Upon this they found a verdict of guilty. Sen- ed as directory only, without invalidating the tence of death was pronounced, but the pri- judgment when omitted, or preventing the soner was reprieved.
entry of the proper judgment and record, spe. (39) William Wyatt was convicted before cifying the time of execution. 2d. Whether Chambre, J. at Cornwall Lent assizes, 1812, supposing the specification of time to be a neupon an indictment for murder. The day of cessary act in pronouncing sentence, the error the week on which the trial took place was was not legally corrected by what was done Thursday; but by mistake it was supposed to in open court the next morning, the court not be Friday, and in passing sentence the execu- having proceeded to any other business what. tion was directed to be on the following Mon- ever in the intermediate time. The judges day instead of Saturday. Immediately after on conference held, that the stat. 25 G. II. c. sentence the court was adjourned till the next 37, is directory only so far as it requires the morning, without the intervention of any other time of the execution to be expressed in probusiness, and the error being discovered soon nouncing the sentence, and therefore the error after the adjournment, the prisoner was direct in this case was rightly and legally corrected ed to be brought up at the sitting of the court by the proceedings on the following morning, in the morning, which was accordingly done, no other business having intervened between and the sentence was given before any other the conviction and pronouncing sentence. basiness was entered upon, to be executed on The prisoner was accordingly executed. 2 the Saturday; an order was then made, pur- Burn J. 24 ed. 1044. suant to the authority given by the 4th and 7th (40) The judge, if he thinks it advisable, sections of stat. 25 G. II. c. 37. to stay the may afterwards direct the hanging in chains, execution and relax the restraints imposed by by a special order to the sheriff; but it does the act, in order to take the opinion of the not form any part of the judgment. Fost. judges upon the following questions. 1st. 107. Whether ihe statute, so far as it requires the (41) The act now in force is 9 Geo. IV. c. time of the execution to be expressed in pro- 31. nouncing the sentence, is not io be considerVOL. II.
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 (o). 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 wise 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 wise 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 (6): 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. (1) FY. 41. 9. 9.
dominos, aut etiam eb homine in semet ipsam (8) Cic. pro S. Roscio, 6 25.
Stiernh. de jure Goth. I. 3, c. 3.
1 Hal. P. C. 380. (u) Foster, 107. 324. 336. (u) See page 75.
(20) " Omnium gravissima censetur ris factu ab incolis in patriam, subditis in regem, liberis in pa- (0) Foster, 106. 1 Hal. P. C. 378.2 Hal. P. C. rentes, maritis in urores, (et vice versa), servis in 184.
(42) Petit treason is abolished in England (43) A person indicted for petit treason, by 9 Geo. IV. c. 31, 02; and in New York, may upon ihe evidence of one witness be coa. by 2 R. S. 657, Ø 8, and the offence now is vicies of murder, though acquitted of the petit weated as murder.
treason. Radbourne's case Leach, 363.
(1) 1 Hal. P. C. 380.
(2) I Hawk. P. C. 89.
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 counsel. lors, by statute 23 Hen. VIII. c. 1. and 4 & 5 P. & M. c. 4.
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 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.
(c) 3 Inst. 118.- Mes, si la pleynte soit faite de (d) Cæsar de bell. Gall, 1.6, c. 18.
femme qu'avera tolle a home ses membres, en tiel (e) See page 93.
case perdra le feme la une moyn par jugement, come (a) See book Ill. page 121.
(Brit. c. 25.) (b) Britt. I. 1, c. 25. 1 Hawk. P. C. 111.
(d) Stiernhook de jure Sueon. 2. 3, t. 3. (44) By the 30 Geo. III. c. 48, women shall 25 Geo. II. c. 37, in cases of murder. Soon no longer be sentenced to be burnt ; but in all after the passing of the 25 Geo. II. c. 37, the cases of high and petit treason they shall be majority of the judges agreed, that in the case condemned to be drawn and hanged, and in of men convicied of petit treason, the judg. petit treason they shall be subject besides to ment introduced by that statute should be add. the same judgment with regard to dissection ed to the common law judgment for petit trea. and the time of execution as is directed by the son. Fost. 107.
le membre douni ele avera trespasse.
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 (S); 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 101. by way of fine to the king, which was his criminal amercement. The last statute, but by far the most se. vere 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). (e) See page 12.
no felony ; but to disfigure with an intent to dis() I Hawk. P. C. 112.
figure, is made so by this statute ; on which they (g) Brac. fol. 144.
were therefore indicted. And Coke, who was a disini Sir Edward Coke (3 Inst. 62.) has transcribed grace to the profession of the law, had the effronta record of Henry the Third's time, (Claus. 13 Hen. ery to rest his defence upon this point, that the asIII. m. 9.) by which a gentleman of Somersetshire sault was not committed with an intent to disfigure, and his wife appear to have been apprehended and but with an intent to murder; and therefore not committed to prison, being indicted for dealing thus within the statute. But the court held, that is a with John the monk, who was caught in adultery man attacks another to murder him with such an
instrument as a hedge-bill, which cannot but en
danger the disfiguring him; and in such attack hap(k) On this statute Mr. Coke, a gentleman of Suf- pens not to kill, but only to disfigure him; he may folk, and one Woodburn, a labourer, were indicted be indicted on this statute ; and it shall be left to in 1722 ; Coke for hiring and abetting Woodburn, the jury to determine whether it were not a design and Woodburn for the actual fact of slitting the to murder by disfiguring, and consequently a maii. nose of Mr. Crispe, Coke's brother-in-law. The cious intent to distigure as well as to murder. Accase was somewhat singular. The murder of Crispe cordingly the jury found them guilty of such prewas intended, and he was left for dead, being ter- vious intent to disfigure, in order to effect their ribly hacked and disfigured with a hedge-bill; but principal intent to murder, and they were both con. he recovered. Now the bare intent to murder is demned and executed. (State Trials, VI. 212.)
(1) These statutes are now all repealed. mentioned statute, ss. 11 and 12 of which pro. “So much of the 5 H. IV. c. 5, as relates to vide ample remedies for that offence. See cutting the tongues or putting out the eyes of those clauses, and the cases bearing upon any of the king's liege people, and to any as- them, set out in full, ante, 194, note (21). sault upon the servant of a knight of the shire There are, however, two species of maiming in parliament,” by the 9 Geo. IV. c. 31; the not included in the 9 Geo. IV. c. 31, it having 37 H. VIII. c. 6, wholly, by the 7 and 8 Geo. been previously found necessary to make IV. c. 27; and the 22 and 23 G. II. c. 1, wholly, them the subjects of distinct enactments; by the 9 G. IV, c. 31 : and the old law with namely, injuries done to the persons of india respect to mayhem is now merged in the last viduals, by means of wanton or furious dri
with the wife.
(i) 3 Inst. 62.
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 aster (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. Vil.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 man- stroy human life, or inflict grievous bodily traps.
harm, with the intent that the same, or whereBy the 1 Geo. IV. c. 4, it is enacted, that by the same, may destroy or inflici grievous if any person whatever shall be maimed or bodily harm upon a trespasser, or other perotherwise injured by reason of the wanton and son coming in contact therewith, the person furious driving or racing, or by the wilful mis. so setting or placing, or causing to be so set or conduct of any coachman or other person hav. placed, such gun, trap, or engine as aforesaid, ing the charge of any stagecoach or public shall be guilty of a misdemeanor (2). carriage, such wanton or furious driving or (2) In New York any one who, from premeracing, or wilful misconduct of such coach. ditated design, evinced by lying in wait or man or other person, shall be, and the same otherwise, or with intent to commit a felony, is thereby declared to be, a misdemeanor, purposely cuts out or disables the tongue of and punishable as such by fine or imprison. another, or puts out his eye, or slits his lip, ment. Proviso, not to extend to hackney or slits or destroys his nose, or cuts off or dis. coaches drawn by two horses only, and not ables any limb or member, is punishable with plying for hire as stagecoaches. This, it will imprisonment not less than seven years. (2 be observed, applies only to cases where some R. S. 664, Ø 27.) injury short of death is inflicted. Where (3) See note 24, p. 196, ante. death ensues from the negligence or miscon. (4) This statule also has been wholly reduct of such persons, the offence amounts pealed by the 7 and 8 Geo. IV. c. 27, and the either to murder or manslaughter. See Rex offence alluded to in the text is now punishv. Walker, I C. and P. 320, ante, 182, note able under the 9 Geo. IV. c. 31. ss. 11 and 12, (7). +
vide ante, 194, 110te (21). By the 7 and 8 G. IV. c. 18, § 1, it is enact- (5) These statutes are both wholly repeal. ed, that if any person shall set or place, ored by the 9 Geo. IV. c. 31, by 9 19 of which it cause to be set or placed, any spring-gun, is enacted, that where any woman shall have man-trap, or other engine calculated to de- any interest, whether legal or equitable, pre
+ Best, C. J., in his celebrated charge to reckless of consequences, either from mere the Wilts. Grand Jury, 1827, alluding to cases wantonness, or from an angry feeling against where death ensues from a collision of carri- the proprietor of a rival coach, but intention. ages, is reported to have said, “ the collision ally, drives one carriage against another, and of carriages may be either accidental or from thereby occasions the death of a person in the negligence of one or both of the drivers; either carriage, that is murder, although the and, in such case, it will be manslaughter. driver did not contemplate so fatal an issue. And I include within the term negligence, Disguise it under what terms you will, whether not only careless driving, but exciting the it originates in rivalry, impatience, or mere horses to such speed that they cannot be stop- wanton indifference to the safety of life, such ped or properly directed; the knowingly dri- furious driving manifests that atrocious wicks ving unbroken or vicious horses, overloading edness of disposition which lawyers call maa coach, or using one that has insufficient lice prepense.” strength or improper harness. But if a man