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corrected his servant with an iron bar; and a schoolmaster stamped on his scholar's belly; so that each of the sufferers died: these were justly held to be murders, because the correction being excessive, and such as could not proceed but from a bad heart, it was equivalent to a deliberate act of slaughter.(a)(23) Neither shall he be guilty of a less crime, who kills another *in conse[*200] quence of such a wilful act as shows him to be an enemy to all mankind in general; as going deliberately, and with intent to do mischief,(b) upon a horse used to strike, or coolly discharging a gun among a multitude of people.(c) So, if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not; for this is universal malice. And, if two or more come together to do an unlawful act against the king's peace, of which the probable consequences might be bloodshed, as to beat a man, to commit a riot, or to rob a park: and one of them kills a man; it is murder in them all, because of the unlawful act, the malitia præcogitata, or evil intended beforehand.(d)(24)

Also, in many cases where no malice is expressed, the law will imply it, as, where a man wilfully poisons another; in such a deliberate act the law presumes

(a) 1 Hal. P. C. 454, 473, 474. (b) Lord Raym. 143. (c) 1 Hawk. P. C. 74. (d) Ibid. 81.

(23) Homicide may be and is often extenuated by the circumstances of a mutual contest arising from the spur of the occasion, where no undue advantage is either sought or taken by either of the parties. See 5 Burr. 2793, and cases cited; 1 East, P. C. 241 to 246. And in this case, it is of no consequence from whom the first provocation arises. 1 Hale, 456. But if one with his sword drawn makes a pass at another whose sword is undrawn, and a combat ensues, if the former be killed, it will only be manslaughter in the latter; but if the latter fall, it will be murder in the former, for by making the pass before his adversary's sword was drawn, he evinced an intention not to fight with but to destroy him. Hel. 61; Hawk. c. 31, s. 33, 34 (a). And where a man upon occasion of some angry words, threw a bottle at the head of his opponent and immediately drew, and when his adversary returned the bottle, stabbed him; this was holden to be murder in him, because he drew previous to the first aggression. Kel. 119; 2 Ld. Raym. 1489. So if two bailiffs arrest a man, and he abuse and threaten and strike them, and bring pistols, declaring that he will not be forced from his house, and on high words arising between them, and on the bailiff's being struck and provoked, they fall on him and kill him, they will be guilty of manslaughter only. 6 Hargr. St. Tr. 195; Fost. 292, 294. And where, on an affray in a street, a soldier run to the combatants, and in his way a woman struck him in the face with an iron patten and drew a great deal of blood, on which he struck her on the breast with the pommel of his sword; and on her running away, immediately followed and stabbed her in the back; he was holden to be guilty simply of felonious homicide: Fost. 292; see 5 Burr. 2794: and where after mutual blows between the prisoner and the deceased, the prisoner knocked down the deceased, and after he was upon the ground stamped upon his stomach and belly with great force, it was held manslaughter only. Russ. and Ry. C. C. 166. On a quarrel between a party of keel-men and soldiers, one of the latter drew his sword to protect himself and his comrades from the assaults of the mob, and killed a person dressed like one of the former, whom he mistook for one of the keel-men, and this was held to be no more than manslaughter. Brown's case, 1 Leach, 148. If A stands with an offensive weapon in the door-way of a room, wrongfully to prevent T. S. from leaving it, and others from entering, and C, who has a right to the room, struggles with him to get his weapon from him, upon which D, a comrade of A, stabs C, it will be murder in D if C dies. Russ. and Ry. C. C. 228. See a late case, where the judges, entertaining doubts as to whether the prisoner who killed another in an affray was guilty of murder, recommended him to a pardon. Russ and Ry. C. C. 43. Where, after mutual provocation, the deceased and his opponent struggled, and in the course of the contest the former received his mortal wounds from a knife which the latter had previously in his hand in use, though the jury found the prisoner guilty of murder, the judges held the conviction wrong, and recommended him for a pardon. 1 Leach, 151. But in no case will previous provocation avail, if it was sought for by the act of the slayer to afford him a pretence for gratifying his own malice. Nor will it alter the case, that blows had previously been given, if they evidently left traces of a deadly revenge, which seeks an opportunity of indulging itself by provoking a second contest to cover and excuse a deliberate attempt on the life of its object. 1 East, P. C. 239, 240.]

(24) Where in an act which is not malum in se, but malum prohibitum (it being prohibited, except to persons of a certain description), as shooting at game, an unqualified person will not be more guilty, if in shooting he accidentally kills a human being, than one who s qualified. Hale, 475; Fost. 259.]

malice, though no particular enmity can be proved.(e) And if a man kills another suddenly, without any, or without a considerable, provocation, the law implies malice; for no person, unless of an abandoned heart, would be guilty of such an act, upon a slight or no apparent cause. No affront, by words or gestures only, is a sufficient provocation, so as to excuse or extenuate such acts of violence as manifestly endanger the life of another.(f) But if the person so provoked had unfortunately killed the other, by beating him in such a manner as showed only an intent to chastise and not to kill him, the law so far considers the provocation of contumelious behaviour as to adjudge it only manslaughter, and not murder.(g) In like manner, if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants, endeavouring to conserve the peace, or any private person endeavouring to suppress an affray or apprehend a felon, knowing his authority or the intention with which he interposes, the law will imply malice, and the killer shall be guilty of murder,(7) And if one intends to do another felony, *and undesignedly kills a man, this is also murder.(i) Thus if one shoots at A[*201] and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder.(j) So also if one gives a woman with child a medicine to procure abortion and it operates so violently as to kill the woman, this is murder in the person who gave it.(k) It were endless to go through all the cases of homicide which have been adjudged, either expressly or impliedly, malicious: these, therefore, may suffice as a specimen; and we may take it for a general rule, that all homicide is malicious, and, of course, amounts to murder, unless where justified by the command or permission of the law; excused on the account of accident or self-preservation; or alleviated into manslaughter, by being either the involuntary consequence of some act, not strictly lawful, or (if voluntary), occasioned by some sudden and sufficiently violent provocation. And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out, to the satisfaction of the court and jury: the latter of whom are to decide whether the circumstances alleged are proved to have actually existed; the former, how far they extend to take away or mitigate guilt. For all homicide is presumed to be malicious, until the contrary appeareth upon evidence.(7)(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 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 [*202] 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)

(ƒ) 1 Hawk. P. C. 82. 1 Hal. P. C. 455, 456.

(e) 1 Hal. P. C. 455. (g) Fost. 291. (h) 1 Hal. P. C. 457. Fost. 308, &c. (i)1 Hal. P. C. 465, (j) I bid. 466. (k) Ibid. 429. (1) Fost. 255 (m) 1 Hal. P. C. 450. (n) 23 Hen. VIII, c. 1. 1. Edw. VI. c. 12. 4 and 5 Ph. and M. c. 4. (0) 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." Dent. xxi, 23.

(p) Famosos latrones, in his locis, ubi grassati sunt, furca figendos placuit: ut, et conspectu deterreantur aliii, et solatio sit cognatis interemptorum eodem loco pœna reddita, in quo latrones homicidia fecissent." Ff. 48, 19, 28, § 15.

(25) As the majority of homicides are not, in fact, malicious, but occur through misadventure, or under circumstances which would reduce the offence to manslaughter, a legal presumption of malice seems inconsistent with the general doctrines of the criminal law, as well as with hu manity. On this subject the reader is referred to the Review of the Trial of Prof. Webster, by Hon. Joel Parker, North American Review, No. 72, p. 178.

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 judge may direct his body to be afterwards hung in chains, 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.(26)

By the Roman law, purricide, 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 as this, we must account for *the omission of an exemplary pun[*203] ishment 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 parvo 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, (27) 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.(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 [*204] than murder 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

(r) Ff. 41, 9, 9.

(s) Cic. pro. S. Roscio, § 25. (v) See page 75.

(t) 1 Hal. P. C. 380.

(q) Fost. 107. (u) Foster, 107, 324, 336. (w) “Omnium 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 semet ipsum. Stiern, de jure Goth. 1. 3 c. 3.

(2) 1 Hawk. P. C. 89. 1 Hal. P. C. 380.

(y) 1 Hal. P. C. 351.

(b) Foster, 106. 1 Hal. P. C. 3.8. 2 Hal. P. C. 184.

(z) Ibid.

(a) Fost. 337.

(26) The act 25 Geo. II, c. 37, is repealed, and by 6 and 7 Wm. IV, c. 30, sentence of death in cases of murder was made the same as in other capital cases.

(27) Petit treason is unknown to the law of the United States, and was abolished in England by statute 9 Geo. IV, c. 31, s. 2.

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 punish

ment..

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 asual punishment for all sorts of treason committed by those of the female sex. (e) (28) 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 councellors, by statute 23 Hen. VIII, c. 1, and 4 and 5 P. and 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. (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, are not held to be mayhems at common law; because they do not weaken but only disfigure him.

[ *206]

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 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 pona capitalis, aliquando perpetuum exilium, cum omnium bonorum ademptione." (g) And this, although the mayhem was committed upon the highest provocation. ()

(c) 1 Hal. P. C. 32. 3 Inst. 311. (a) See book III. page 121.

(d) Cæsar de bell. Gall. l. 6. c. 18. (b) Britt. 7. 1, c. 25. 1 Hawk. P. C. 111.

(e) See page 93.

(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. (f) 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.

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

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 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 subjects, he shall not [*207] 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 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)

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 [*208] 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 madman, was never executed, but confined in prison, where he died about thirty years after. (1)

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, or 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. (2)

(i) 3 Inst. 62.

(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 distigure as well as to murder. Accordingly the jury found them guilty of such previons intent to disfigure, in order to effect the principal intent to murder, and they were both condemned and executed. (State Trials, VI, 212.)

(1) All the previous statutes, so far as they relate to offences 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.

(2) This offenec 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.

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