civil or criminal, in the execution of his duty, or any of his assistants endeavouring to conferve 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. And if one intends to do another felony, and undesignedly kills a man, this is also murders. Thus if one shoots at A 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 cafe, 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. 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 permiffion of the law; excused on a principle of accident or self-preservation; or alleviated into manslaughter, by being either the involuntary consequence of some act, not strictly lawful, or (if voluntary) occafioned 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 fatisfaction of the court and jury: the latter of whom are to decide whether the circumstances alleged be proved to have actually existed; the former, how far they extend to take away or mitigate the guilt. For all homicide is prefumed to be malicious, until the contrary appeareth upon evidence1.

THE punishment of murder, and that of manslaughter, were 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 *. But now, by statute 23 Hen.VIII. c. 1. and 1 Edw.VI. c. 12. the benefit of clergy is taken away from murder though malice prepense. 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 fometimes practiced in the case of notorious thieves. This, being quite contrary to the express command of the mosaical law1, 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 fight to the relations and friends of the deceased. But now in England, it is enacted by statute 25 Geo. II. c. 37. that the judge, before whom a murderer is convicted, 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"; and that the judge may direct his body to be afterwards hung in chains, but in no wife to be buried without difssection. 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 fufficient cause, to respite the execution, and relax the other restraints of this act.

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 vi

!

"fati funt, furca figendos placuit; ut, et con-
"Spectu deterreantur alii, et folatio fit cogna-
" tis interemptorum, eodem loco poena reddita,
“ in quo latrones homicidia fecissent." Ff. 48.
19. 28. §. 15.
• Foft. 107.

per, and an ape, and so cast into the sea. Solon, it is true, in his laws, made none against parricide; apprehending it impofsible that any one should be guilty of so unnatural a barbarity. 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, must we account for the omiffion of an exemplary punishment for this crime in our English laws; which treat it no otherwise than as fimple murder, unless the child was also the servant of his parent.

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'; although, on account of the violation of private allegiance, it is stigmatized as an inferior species of treason'. And thus, in the antient Gothic constitution, we find the breach both of natural and civil relations ranked in the fame class with crimes against the state and the sovereign '.

PETIT treason, 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 traiterous intention was hatched while the relation subsisted between them; and this is only an execution of that intention". So if a wife be divorced a mensa et thoro, still the vinculum ma

• “Omnium gravissima cenfetur vis falta

u

trimonii subsists; and if she kills such divorced husband, she is a traitress". 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 fuffragan or diocefan bishop: and therefore to kill any of thefe is petit treason *. 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 it's 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"; and also except in it's punishment.

THE punishment of petit treason, in a man, is to be drawn and hanged, and, in a woman, to be drawn and burned": the idea of which latter punishment seems to have been handed down to us from the laws of the antient Druids, which condemned a woman to be burned for murdering her husband; and it is now the usual punishment for all forts of treasons committed by those of the female sexb. Persons guilty of petit treason were first debarred the benefit of clergy by statute 12 Hen. VII. c. 7.

1 Hal. P. C. 382. 3 Inft. 311. a Caefar de bell, Gall. 1. 6. c. 18. ▸ See pag. 93.

CHAPTER THE

FIFTEENTH.

OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.

HAVING

AVING in the preceding chapter confidered the princior public wrong, that can be committed against a private subject, namely, by destroying his life; I proceed now to enquire into such other crimes and misdemesnors, as more peculiarly affect the security of his person, while living.

Of these some are felonious, and in their nature capital; others are fimple misdemesnors, and punishable with a lighter animadverfion. Of the felonies the first is that of mayhem.

I. MAYHEM, mahemium, was in part confidered in the preceding volume, 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 afsistance of his subjects. For mayhem is properly defined to be, as we may remember, the violently depriving another of the use of fuch of his members, as may render him the less able in fighting, either to defend himself, or to annoy his adversary. And therefore the cutting off, or disabling, or weakening a man's