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the express command of the mosaical lawo, 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. 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 sen-, tence 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 9: and that the judge may direct his body to be afterwards hung in chains, but in no wise 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..
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 viper, and an ape, and so cast into the sea '. 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'. And the Persians, according to Herodotus, entertained the same notion, when they adjudged all persons who killed their reputed parents to be [supposititious or] bastards. (24) And, upon some such reason as this, we must account for the omission of an exemplary punishment [ 208 ]
o « His body shall not remain all « ut, et conspectu deterreantur ali, et « night upon the tree, but thou shalt in " solatio sit cognatis interemptorum « any wise bury him that day, for he “ eodem loco poena reddita, in quo la" that is hanged is accursed of God, « trones homicidia fecissent." Ff.48. " that thy land be not defiled.” Deut. 19.28. $15. xxi. 23.
9 Fost. 107. p" Famosos latrones, in his locis, ubi "Ff. 41. 9. 9. “ grassati sunt, furca figendos placuit; Cic. pro S. Roscio, $25.
(24) See Clio. c. 137.
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". (25)
For, though the breach of natural relation is unobserved, yet the breach of civil or ecclesiastical connections, 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 same 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 (26), 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
+ 1 Hal. P.C. 380.
“ uxores, (et vice versa,) servis in doFoster, 107. 324. 336.
“ minos, aut etiam ab homine in semet # See pag. 75.
« ipsum." Stiernh. de jure Goth. l.3. W “ Omnium gravissima censetur vis, C.3. “ facta ab incolis in patriam, subditis in i Hawk. P.C. c. 82. $ 4. i Hal. “ regem, liberis in parentes, marilis in P.C. 380.
(25) By the French law, parricide includes the murder of adoptive as well as natural parents, and all legitimate relatives in the lineal ascent; no circumstances are allowed to reduce it to excusable homicide, and its punishment is attended with certain peculiar solemnities. The prisoner is brought to the place of execution in his under-garment, barefooted, and his head covered with a black veil ; he stands exposed on a scaffold, while an officer reads aloud to the people his sentence: his right hand is then cut off, and he is immediately executed. Code Penal, liv.i. c. 1. s. 13. liv, iii. tit. 2. s. 299. 323. . - (26) Which term includes his mistress, if there be no master, and also his master's wife. East's P. C. c. v. s. 99. .
mensa et thoro, still the vinculum matrimonii subsists ; and if she kills such divorced husband, she is a traiteressy. 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 : except that the trial shall [ 204 ] be as in cases of high treason, before the improvements therein made by the statutes of William III. 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 : the idea of which latter punishment seems to have been handed down to us by the laws of the antient Druids, which condemned a woman to be burnt for murdering her husband "; and it is now the usual punishment for all sorts of treasons committed by those of the female sex ®. (27) 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 statues 23 Hen. VIII. c. 1. and 4 & 5 P.& M. c. 4. y i Hal. P.C. 381.
( 1 Hal. P.C. 382. 3 Inst.211. 2 Ibid.
d Cæsar de bell. Gall. 1.6. c. 19. * Fost. 337.
c See pag.93. • Foster, 106. i Hal. P.C. 378. 2 Hal. P.C. 184.
(27) By the 30G.3. C. 48. the punishment of women for petit-treason is altered; they are now to be drawn to the place of execution, and there hanged by the neck. They are also made subject to the further penalties and provisions of the 25 G. 2. c.37. (See ante, p. 202.)
CHAPTER THE FIFTEENTH.
OF OFFENCES AGAINST THE PERSONS
HAVING in the preceding chapter considered the prin
cipal crime, or 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 simple misdemesnors, 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 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 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. 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.
See Vol. III. pag. 121. Brit. I. 1. c.25. 1 Hawk.P.C. c. 55. $ 1.
By the antient 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?: which is still the law in Sweden. But this went afterwards out of use: partly because the law of retaliation, as was formerly shewnę, 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 castration, which all our old writers held to be felony: “ et sequitur « aliquando poena capitalis, aliquando perpetuum exilium, cum 66 omnium bonorum ademptione 8.” And this, although the mayhem was committed upon the highest provocation . (1)
But subsequent statutes have put the crime and punishment of mayhem more out of doubt. For first, by statute 5 Hen. 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 37 Hen. VIII. c. 6. which directs, that if a man shall malici
<3 Inst. 118.—Mes, si la pleynte soit transcribed a record of Henry the third's faite de femme qu'avera tolle a home ses time, (Claus. 13 Hen. III. m. 9.) by membres, entiel case perdra le feme la une which a gentleman of Somersetsbire meyn par jugement, come le membre dount and his wife appear to have been apele avera trespasse. (Brit. c. 25.) prehended and committed to prison,
d Stiernbook de jure Sueon. 1.3. 1.3. being indicted for dealing thus with e See pag. 12.
John the monk, who was caught in pi Hawk. P.C. c.55. $ 3.
adultery with the wife, & Bract. 1. 3. tr. 2. c. 23.
i 3 Inst. 62. - h Sir Edward Coke (3 Inst. 62.) has
(1) By the French law, this species of mayhem is punished with hard labour for life, or by death, where the party so maimed dies in consequence within forty days. If, however, the act of violence has been provoked by and immediately follows upon some gross outrage to chastity and modesty, it sinks down to an excusable wounding or homicide, as the case may be, and is then punished with an imprisonment of from one to five years. Code Penal, 1.üi, t. 2. 6.316. 325, 326.