Sivut kuvina
PDF
ePub

and this is only an execution of that intention. (a) So, if a wife be divorced a mensa et thoro (from bed and board), still the vinculum matrimonii (bonds of matrimony) 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 applicable to the crime of petit treason, which is no other than murder in *its most odious degree: [*204] 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. 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 treason committed by those of the female sex. (e) 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 statutes 23 Hen. VIII, c. 1, and 4 and 5 P. and M. c. 4.

*CHAPTER XV.

OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.

[*205]

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.

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

(y) 1 Hal. P. C. 381. (z) Ibid. (a) Fost. 897. (c) 1 Hal. P. C. 382. 3 Inst. 311. (e) See page 93. (a) See book III, p. 121.

(x) 1 Hawk. P. C. 89. 1 Hal. P. C. 380.
(b) Foster, 106. 1 Hal. P. C. 378. 2 Hal. P. C. 184.
(d) Cæsar de bell. Gall. l. 6, c. 19.

1It was abolished by 30 Geo. III, c. 48. The punishment is now death by hanging.

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 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.

Punishment. 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 (limb for limb); (c) which is still the law in Sweden. (d) But this went afterwards out of use: partly because the law of retaliation, as was formerly shown, (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 all our old writers held to be felony: "et sequitur aliquando pana capitalis, aliquando perpetuum exilium, cum omnium bonorum ademptione" (and sometimes capital punishment follows, sometimes perpetual exile with the loss of all his goods). (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 (2) explains it, voluntarily, and of set purpose, though done upon a sudden occasion. Next, in order of time, is the statute of 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

[*207] 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 and 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

(b) Britt. 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. (But if the complaint be preferred against a woman that she had mutilated a man, she shall be adjudged to lose her hand, as the member with which she had offended.) (Brit. c. 25.) (d) Stiernhook, de jure Sueon. 1. 3, t. 3. (f) 1 Hawk. P. C. 112.

(e) See page 12.

(g) Brac. 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.

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 to disfigure him; such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy. (k)

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 [*208] 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.1

II. Abducting an heiress.-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 heir

ess.

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, or being heir apparent to her ancesters, 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.2

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. (1) 2. In order to show this, it

(k) On this statute Mr. Coke, a gentleman of Suffolk, and one Woodburn, a laborer, 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 the 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 the principal intent to murder, and they were both condemned and executed. (State Trials, VI, 212.) (l) 1 Hawk. P. C. 110.

1 All the previous statutes, so far as they relate to offenses against the person, were repealed by 7 Wm. IV, and 1 Vic., c. 85. For the most recent revision of the law on this subject, see statute 24 and 25 Vic., c. 100. Penal servitude for life is now the extreme penalty. As to the proper mode of charging mayhem, see Chick v. State, 7 Humph. 161; State v. Briley, 8 Port. (Ala.) 472.

2This offense is now punishable under statute 24 and 25 Vic., c. 100. The extreme penalty is fourteen years' penal servitude. The guilty party is made incapable, by the statute, of taking any estate or interest in the property of the woman married, but the property, on his conviction, is to be settled as the court of chancery may appoint.

must appear that the woman has substance, either real or personal, or is an heir apparent. (m) 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: (n) and so vice versa, if the woman be originally taken away with her own consent, yet if she afterwards refuse to continue with the offender, and be forced against [*209] her will, she may from that time as properly *be said to be taken against her will, as if she never had given any consent at all; for till the force was put upon her she was in her own power. (0) 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 (in fact); contrary to the general rule of law; because he is no husband de jure (in law), in case the actual marriage was also against her will. (p) 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 (2) 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 and 5 P. and M. 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 (r) 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 governors, he shall be imprisoned for 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 [*210] provisions of a very different kind, which make the marriage totally void, (s) in the statute 26 Geo. II, c. 33.1

III. Rape. A third offence, against the female part also of his majesty's subjects, but attended with greater aggravation 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,

(n) 1 Hal. P. C. 660.

(0) 1 Hawk. P. C. 110. (g) Cro. Car. 488. 3 Keb. 193. State Trials, V, 455. (8) See Book I, page 437, &c.

(m) 1 Hal. P. C. 660. 1 Hawk. P. C. 109.
(p) 1 Hal. P. C. 661.
(r) Stra. 1162.

1 The act 4 and 5 P. and M., c. 8, is re- graph is covered by 24 and 25 Vic., pealed, and the subject of this para- c. 100. See Roscoe Čr. Ev., 6th ed., 244.

by the Jewish law, (t) 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 (u) punishes the crime of ravishment with death and confiscation of goods: under which it includes both the offence of forcible abduction, or taking away a woman from her friends, of which we last spoke: and also the present offence of forcibly dishonouring them; either of which, without the other, is in that law sufficient to constitute a capital crime. Also the stealing away a woman from her parents or guardians, and debauching her, is equally penal by the emperor's edict, whether she consent or is forced: "sive volentibus, sive nolentious mulieribus, tale facinus fuerit perpetratum" (the crime will be the same whether the woman consent or not). And this, in order to take away from women every opportunity of offending in this way: whom the Roman law supposes never to go astray, without the seduction and arts of the other sex: and therefore, by restraining and making so highly penal the solicitations of the men, they meant to secure effectually the honour of the women. "Si enim ipsi raptores metu, vel atroci tate pœnæ, ab hujusmodi facinore se temperaverint, nulli mulieri, sive volenti, sive nolenti, peccandi locus relinquetur; quia hoc ipsum velle mulierum, ab insidiis nequissimi hominis qui meditatur rapinam, inducitur. *Nisi etenim eam solicitaverit, nisi, odiosis [*211] artibus circumvenerit, non faciet eam velle in tantum dedecus sese prodere." (For if the ravisher be restrained from a crime of this nature, either through fear, or the severity of the punishment, no opportunity is left for a woman to offend either willingly or unwillingly, because the desire is always raised in her by the wicked seductions of the man who meditates the violence. For unless he solicit her, unless he compass his design by odious arts, he could never make her wish to betray herself to such dishonour.) But our English law does not entertain quite such sublime ideas of the honour of either sex, as to lay the blame of a mutual fault upon one of the transgressors only: and therefore it makes it a necessary ingredient in the crime of rape, that it must be against the woman's will.

Punishment.-Rape was punished by the Saxon laws, particularly those of King Athelstan, (w) with death: which was also agreeable to the old Gothic or Scandinavian constitution. (x) But this was afterwards thought too hard: and in its stead another severe but not capital punishment was inflicted by William the Conqueror; viz., castration and loss of eyes; (y) which continued until after Bracton wrote, in the reign of Henry the Third.

Mode of accusation.- But, in order to prevent malicious accusations, it was then the law (and, it seems, still continues to be so in appeals of rape), (2) that the woman should immediately after, dum recens fuerit maleficium (while the injury be recent), go to the next

(t) Deut. xxii, 25. (u) Cod. 9, tit. 13. (x) Stiernh. de jure Sueon, 1. 3, c. 2.

(w) Bracton, l. 8, c. 28. (y) LL. Gul. Cong. c. 19.

(z) 1 Hal. P. C. 632.

« EdellinenJatka »