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per, and an ape, and fo caft into the fea. Solon, it is true, in his laws, made none against parricide; apprehending it impoffible that any one should be guilty of fo unnatural a barbarity P. And the Perfians, according to Herodotus, entertained the fame notion, when they adjudged all perfons who killed their reputed parents to be baftards. And, upon fome fuch reafon 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 alfo the fervant of his parents.
FOR, though the breach of natural relation is unobferved, yet the breach of civil or ecclefiaftical connexions, when coupled with murder, denominates it a new offence; no less than a fpecies 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 ftigmatized as an inferior species of treason. And thus, in the antient Gothic conftitution, we find the breach both of natural and civil relations ranked in the fame clafs with crimes against the state and the fovereign ..
Edw.III. c.2. may
PETIT treason, according to the statute happen three ways: by a fervant killing his master, a wife her husband, or an ecclefiaftical perfon (either fecular, or regular) his fuperior, to whom he owes faith and obedience. A fervant who kills his master whom he has left, upon a grudge conceived against him during his fervice, is guilty of petit treason: for the traiterous intention was hatched while the relation fubfifted between them; and this is only an execution of that intention". So if a wife be divorced a menfa et thoro, ftill the vinculum ma
trimonii fubfifts; and if fhe kills fuch divorced husband, she is a traitrefs". And a clergyman is understood to owe canonical obedience, to the bishop who ordained him, to him in whofe diocefe he is beneficed, and also to the metropolitan of such suffragan or diocesan bishop: and therefore to kill any of these is petit treafon. As to the reft, whatever has been faid, 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 cafes of high treason, before the improvements therein made by the statutes of William III; and alfo 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 feems 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 fex". Perfons guilty of petit treason were first debarred the benefit of clergy by statute 12 Hen. VII. c. 7.
I Hal. P. C. 381.
y Foft. 337.
1 Hal. P. C. 382. 3 Inft. 311. a Caefar de bell. Gall. 1, 6. г. 18, b See pag. 93.
OF OFFENCES AGAINST THE PERSONS OF
AVING in the preceding chapter confidered the princi
Hpal crime, or public wrong, that can be committed against
a private subject, namely, by destroying his life; I proceed now
Of these some are felonious, and in their nature capital; others are fimple misdemefnors, 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 alfo 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 affiftance 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. And therefore the cutting off, or disabling, or weakening a man's
* See Vol. III. pag. 121,
Brit. 7. 1. c. 25. 1 Hawk. P. C. 111.
hand or finger, or striking out his eye or foretooth, or depriving him of those parts, the lofs of which in all animals abates their courage, are held to be mayhems. But the cutting off his ear, or nofe, or the like, are not held to be mayhems at common law; because they do not weaken but only disfigure him.
By the antient law of England he that maimed any man, whereby he loft any part of his body, was fentenced to lofe the like part; membrum pro membro: which is ftill the law in Sweden. But this went afterwards out of ufe: partly because the law of retaliation, as was formerly fhewn, 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 £; unless perhaps the offence of mayhem by caftration, which all our old writers held to be felony; " et fequitur aliquando poena capitalis, "et aliquando perpetuum exilium, cum omnium bonorum ademptione &» And this, although the mayhem was committed upon the highest provocation b.
BUT fubfequent ftatutes have put the crime and punishment of mayhem more out of doubt. For, firft, by ftatute 5 Hen.IV. c. 5. to remedy a mifchief 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 fir Edward Coke explains it, voluntarily
and of fet purpose, though done upon a fudden occafion. Next, in order of time, is the ftatute 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 fubjects, he fhall not only forfeit treble damages to the party grieved, to be recovered by action of trefpass at common law, as a civil fatisfaction; but also 10%. 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 & 23 Car. II. c. 1. called the Coventry act; being occafioned by an affault on fir John Coventry in the street, and slitting his nose, in revenge (as was fuppofed) for fome 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 difable the tongue, put out an eye, flit the nose, cut off a nofe or lip, or cut off or disable any limb or member of any other perfon, with intent to maim or to disfigure him; fuch perfon, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy.
* On this statute Mr Coke, a gentleman of Suffolk, and one Woodburn, a labourer, were indicted in 1722; Coke for hiring and abetting Woodburn, and Woodburn for the actual fact, of flitting the nofe of Mr Crifpe, Coke's brother in law. The cafe was fomewhat fingular. The murder of Crifpe 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 fo by this ftatute; on which they were therefore indicted. And Coke, who was a difgrace to the profeffion of the law, had the effrontery to reft his defence upon this point, that the affault was not committed with an in
tent 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 fuch an inftrument as a hedge bill, which cannot but endanger the disfiguring him; and in fuch attack happens not to kill, but only to disfigure him; he may be indicted on this ftatute: and it fhall be left to the jury whether it were not a defign to murder by disfiguring, and confequently a malicious intent to disfigure as well as to murder. Accordingly the jury found them guilty of fuch previous intent to disfigure, in order to effect their principal intent to murder, and they were both condemned and executed. (State Trials. VI. 212.)