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CHAPTER THE SECOND.
OF PETIT TREASON.
Perit treason is a breach of the lower allegiance of private and domestic faith; and considered as proceeding from the same principle of treachery in private life as would have led the person, harbouring it, to have conspired in public against his liege lord and sovereign. At common law the instances of this kind of crime were more numerous than they are at present, and involved in some uncertainty :(a) but, by the statute 25 Edw. 3. st. 5. c. 2. they were reduced to the following cases,-1. Where a servant kills his master. 2. Where a wife kills her husband. 3. Where an ecclesiastical person, secular or regular, kills his superior, to whom he owes faith and obedience.
The principles which have been laid down, with respect to Principles rewilful murder, are also applicable to the crime of petit treason, lating to wilwhich, though it appears to have been sometimes regarded
ful murder, differ
are applicable ently,() is substantially the same offence as murder, differing to petit treaonly in degree.(c) It is murder aggravated by the circumstance son. of the allegiance, however low, which the murderer owed to the deceased; and in consequence of that circumstance of aggravation, and of that alone, the judgment upon a conviction is more grievous in one case than in the other; though in common practice no material difference is made in the manner of the execution.(d) Accordingly a person guilty of petit treason may be indicted for murder:(e) and a wife or servant joining with a stranger in the murder of the husband or master, may be charged in one indictment (which could not be if their offences were not substantially the same); and such indictment concluding that they “ feloniously, traitorously, and of malice afore-thought,
(a) i Hale 376.
treason is made liable to such further (6) By unwary people, as Mr. J. pains and penalties as are declared by Foster says. Fost. 323.
25 G. 2. c. 37. with respect to persons (c) Fost. 323, 327, 336. 4 Blac. Com. convicted of wilful murder. 203.
(e) i Hale 378. Fost. 325, et sequ. (d) Fost. 323. And now by 30 G. 3. There is a case contrà cited in 'oke v. c. 48. in all cases of conviction of any Woodburn, 6 St. Tr. 224. : but Mr. J. woman for bigh or petit treason, tbe Foster gives good reasons for the conjudgment shall be that she shall be clusion that no such case ever existed, drawn and hanged, and not burned; Fost. 326. and any woman convicted of petit
murdered,” is good for both, reddendo singula singulis.(f) But, though the indictment may be for murder only, it is considered as most proper to prefer an indictment for petit treason, because the judgment is different, and because a person indicted for petit treason is entitled to a peremptory challenge of thirty-five. (8) And this doctrine was acted upon by a very learned judge, in a case of late occurrence. The prisoner was arraigned on the last day of the assizes, and after the grand jury had been discharged, upon an indictment charging her with the wilful murder of her sister; when Lawrence, J., upon reading the depositions taken before the coroner, found that she had acted as a servant in her sister's family; upon which, after conferring with the counsel for the prosecution, and citing the authority of Foster, J., (h) he refused to try her upon that indictment, and ordered her to be detained in prison; and that an indictment for petit treason should
be preferred against her at the next assizes. (i) A prisoner in- Upon an indictment for petit treason, if the killing of the dedicted for petit ceased with malice be proved, but not the relation between the be found guilty parties; (k) or if the fact can only be proved by one witness, or by of murder, and the examination of the deceased before a magistrate, by virtue of acquitted of
the statutes of Philip and Mary, the prisoner may be found guilty of murder, and acquitted of the treason :(l) and upon such an indictment the prisoner may be acquitted of the treason, and found
guilty of manslaughter.(m) Servant kill- The statute of the 25 Edw. 3. has been construed so strictly ing master or that no case which could not be brought within the meaning of mistress.
the words, however heinous in its nature, has been expounded to be within the equity of them; and, therefore, it has been held that the murder of a father by a son shall not be punished as petit treason, unless the son may by a reasonable construction come under the word servant. But, if he be bound apprentice to his father or mother, or is maintained by them, or does for them any necessary service, though he do not receive wages, he may be indicted by the description of servant (n); and a near relation, as a
(f) Fost. 329. Swan's case, Post. ment for petit treason for the same 105. Dalis. 16.
fact, and so è converso. See also a (g) Swan's case, Fost. 104, et sequ. Hale, 246, 252. 3 Inst. 213. It may And see Fost. 328, where the learned observed as to the challenge of thirtyauthor says, that in cases where, upon five, that it was restored by 1 & 2 Ph. any indictment for murder, it should & M. c. 10. come out in evidence, that the crime (h) Ante, note (g). amounted to petit treason, he should (i) Rex v. Edwards, cor. Lawrence, make no sort of difficulty of discharg- J. Stafford Ass. MS. ing the jury of the indictment for (k) i Hale 378. 2 Ha 184, 292. murder, and ordering a fresh indict. Fost. 328. ment for petit treason; and that he (1) Radbourne's case, i Leach 457. thought it by no means advisable to And see i Hale 305. 2 Hale 284. Fost. direct the jury to give a verdict of 328. The statutes 1 & 2 Ph. and M. acquittal, as a person charged with a c. 13, and 2 and 3 Ph. & M. c. 10. excrime of so heinous a nature ought tend only to felonies. not to have the chance given him by (m) i Hale 378. the court of availing himself of the (n) i Hawk. P.C. c. 32. s. 2. 1 East. plea of autrefois acquit. And in Fost. P.C. c.5. s. 99. p. 336. At common 329, it is laid down that autrefois law, the son would have been guilty of acquit or atlaint upon an indictment petit treason, though not a servant. for murder is a good bar to an indict. i Hale 380.
sister, may be a servant within the meaning of the statute, if she acts as guch in the family (o). The murder of a mistress, or of a master's wife, has been adjudged petit treason within the statute, on the ground of those persons being within the meaning of the word muster, which is used to signify any person to whom another stands related as servant. (p) And the murder of a person by one who was his servant, upon malice conceived during the service, though it be not within the express words of the statute, is within their meaning; for it is but the execution of the treasonable intention of the party conceived while he was a servant.(9)
A wife, though divorced a mensá et thoro, is still within the Wife killing statute, because the vinculum matrimonii subsists: but other- her husband. wise, if there be a divorce causa consanguinitatis, or præcontractûs; for then the vinculum is dissolved.(r) A wife de facto is not sufficient; and therefore if A. be married to B., and during that intermarriage marry C., the second marriage being merely void, C. is not a wife within this law; though perhaps she might, under circumstances, be considered as a servant, if she cohabit with A., and he find her necessaries for her subsistence. (s) But a husband cannot be guilty of petit treason by killing his wife, for there is no reciprocity of obedience and subjection.(7)
A clergyman is understood to owe canonical obedience to the Clergyman bishop who ordained him, to him in whose diocese he is beneficed, killing his and also to the metropolitan of such suffragan or diocesan bishop;
superior. and, therefore, to kill any of these is petit treason. And if he have livings in two dioceses, the bishops of both are his immediate ordinaries; for he swears obedience to both.(u)
If a wife or servant procure a stranger to kill the husband or Of principals master, in the absence of such wife or servant, neither the pro
ries. curer nor actor are guilty of petit treason, but only of murder; as it is an allowed maxim that the offence of an accessory can never be of a higher kind than that of the principal. But, if the wife or servant be either actually present when the crime is committed, or present only in the judgment of the law by being in the same house, though not in the same room, such wife or servant will be deemed principals equally with the stranger, and they will be guilty of petit treason, and the stranger of murder. (10) If a wife procure a servant to kill the husband, she being absent, it will be petit treason in the servant, and the wife will be an accessary : (.x) and it seems, that if a stranger procure a wife or servant to kill the husband or master, such stranger may be indicted as an accessory to petit treason. (y)
If a servant and a stranger, or if a wife and a stranger, conspire to rob the husband or master; and the servant or wife be present when the master happens to be killed in prosecution of
(0) Rex v. Edwards, ante, note (1). (t) i Hawk. P. C. c. 32. s. 9.
(p) i Hale 380. 1 Hawk. P. C. c. 32. (u) 4 Blac. Com. 203. 1 East. P. C. S. 3.
c. 5. s. 101. p. 338.
1 Hale 381. 1 (9) 1 Hawk. P. C. c. 32. s. 4. i Hale Hawk. P. C. c. 32. s. 10. 380. 1 East. P. C. c. 5. S. 99. p. 386. (w) I Hawk. P. C. c. 32. s. 7. 1
(r) 1 Hale 380. 1 Hawk. P. C. c. 32. Hale 378, 379. S. 9. 4 Blac. Com. 203.
(x) I Hawk. P. C. c. 32. s. 8. 1 (8) 1 Hale 380. But the learned East. P. C. c. 5. s. 102. p. 338. writer adds tamen quære.
() 1 Hawk. P. C. c. 32. s. 8.
the original design, the wife or servant will be guilty of petit treason. (3) And if a wife or servant intending to poison or kill a stranger, the wife by mistake poison or kill her husband, or the servant his master, this, which would have been murder if it had taken effect against the stranger, becomes petit treason in the death of the husband or master. (a)
The same rule holds throughout, mutatis mutandis, for an in
ferior clergyman in relation to his superior. (b) Of the judg- The judgment in petit treason is, that the criminal be drawn ment and exe- (on a hurdle), and hanged until dead. (c) It was formerly dif
ferent in the case of women, who were adjudged to be drawn and burned: but this was altered by the statute 30 G. 3. c. 48. by which they are subjected to the same judgment in all respects as men, and particularly with respect to the provisions of the statute 25 G. 2. c. 37. And it has been resolved by the Judges that the judgment for dissecting and anatomizing, and touching the time of execution, ought to be pronounced in cases of petit treason, though murder only is mentioned in the statute, and in that case too that the time of execution should be part of the judgment. (d)
(z) 1 Hale 379. (Dy. 128 a.) i East. afterwards the head shall be severed P. C. c. 5. s. 102. p. 338.
from the body, and the body be di(a) i Hale 379. Plowd. Com. 475 b. vided into four quarters. (0) 1 East. P. C. c. 5. s. 102. p. 338. (d) I East. P. C. c. 5. s. 136. p. 372.,
(c) The sentence in high treason is and the case of Swap and Jefferys, id. made similar to this hy a late statute, p. 373. 54 G. 3. c. 146. with the addition that
CHAPTER THE THIRD.
In this species of homicide, malice, which has been shewn (a) to be the main ingredient and characteristic of murder, is considered to be wanting ; and though manslaughter is in its degree felonious, yet it is imputed by the benignity of the law to human infirmity; to infirmity which, though in the eye of the law criminal, is considered as incident to the frailty of the human constitution. (b) The punishment appointed for it is proportionably lenient; as (with the exception only of one sort of manslaughter, which by the statute 1 Jac. 1. c. 8. commonly called the statute of stabbing, is made a capital crime,) the offender is admitted to the benefit of clergy.
In order to make an abettor to a manslaughter a principal in Of aiders and the felony, he must be present aiding and abetting the fact com- abettors, and mitted. (c) But there cannot be any accessories before the fact in manslaughter, because it is presumed to be altogether sudden, and without premeditation. (d) Thus, if the indictment be for murder against A., and that B. and C. were counselling and abetting as accessories before only, (and not as present aiding and abetting, for such are principals,) if A. be found guilty only of manslaughter, and acquitted of murder, the accessories before will be thereby discharged. (e) There may, however, be accessories after the fact in manslaughter. (f)
The several instances of manslaughter may be considered in the following order :
I. Cases of provocation.
in their aid, and to private persons lawfully interfering to
(a) Ante, 421, et sequ.
(e) i Hale 437, 450. (6) Fost. 290. 1 Hale 466.
(f) i Hale 450. 1 East. P. C. c. 5. (c) i Hale 438, 439, and see ante, S. 123. p. 353. This seeins to have 431, et sequ. as to what will be a pre- been doubted before the statute i Ann. sence, aiding and abetting:
stat. 2. c.9. s. 1. (2 Hawk. P. C. c. 29. 1 Hale 437. I Hawk. P. C. c. S. 24): but the effect of that statute
seems to have removed the doubt.
30. s. 2.