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mensa et thoro, still the vinculum matrimonii subsists; and if she kills such divorced husband, she is a traiteress. 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 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: 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 1 Hal. P. C. 381.

z Ibid.

a Fost. 337.

Foster, 106. 1 Hal, P. C. 378.

2 Hal. P. C. 184.

1 Hal. P. C. 382. 3 Inst.211.
d Cæsar de bell. Gall. 1.6. c.19.
e See pag. 93.

(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
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 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 buti be mayhems. But the cutting off his ear, or nose, or the like, are not held to be mayhems at common law; because A they do not weaken but only disfigure him.

See Vol. III. pag. 121.

b Brit. 1.1. c.25. 1 Hawk. P. C. c. 55. § 1.

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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 shewn, 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 " omnium bonorum ademptione "." 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' 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 faite de femme qu'avera tolle a home ses membres, entiel case perdra le feme la une meyn par jugement, come le membre dount ele avera trespasse. (Brit. c. 25.)

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,

d Stiernhook de jure Sueon. 1.3. t. 3. being indicted for dealing thus with

e See pag. 12.

f 1 Hawk. P. C. c.55. § 3.

g Bract. 1. 3. tr. 2. c. 23.

John the monk, who was caught in adultery with the wife,

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, l. iii. t. 2. 8.316.325, 326.

ously and unlawfully cut off the ear of any of the king's subjects, he shall not 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 & 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 to disfigure him; such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy *. (2)

* 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 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 this 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 whether it were not a design to murder by disfiguring, and consequently a malicious intent to disfigure as well as to murder. Accordingly the jury found them guilty of such previous intent to disfigure, in order to effect their principal intent to murder, and they were both condemned and executed. (State Trials, VI. 212.)

(2) The words "malice aforethought" in this statute do not require a malice directed against any particular individual, or the individual who suffers by it. If the malice be conceived against all who may happen to fall within the scope of the perpetrator's design, the particular mischief done will connect itself with the general malignant intent, and the statute will be satisfied. So again, if the blow be intended to maim A, and by accident maim B, the party is equally within its reach. This is upon the general principles of construction in the criminal law.

With regard to the words "lying in wait," it is not necessary that the party should have planted himself in ambush, and effected the mischief by

rushing

THUS much for the felony of mayhem: to which may bę 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 felony without benefit of clergy by statute [208] 9 Geo. I. c.22., and thereupon one Arnold was convicted in 1723 for shooting at lord Onslow; but, being half a madman, was never executed, but confined in prison, where he died about thirty years after. (3)

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 women, 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. (4)

rushing from it; it is enough if there be a formed intention to maim, and a convenient opportunity sought and deliberately taken of doing the injury.

Lastly, the word "slit" will be satisfied by a transverse, as well as a perpendicular cut of the nose; any division of the flesh or gristle of the nose, in whatever form or direction, is sufficient. East's Pl. C. c. vii, s.3.

(3) The same construction has prevailed with regard to this statute, which is specially enacted relative to the 43 G.3. c.58. (see ante, p.196. n.20.) To bring a case within it, there must have been such malice that if death had ensued it would have been murder. And though it is not necessary that any evil consequence should actually ensue from the shooting, yet there must have been a possibility of it; the gun or other instrument must have been loaded, and it must have been levelled at the party; so that where the prisoner imagined the party was gone in one direction, and fired accordingly, whereas in truth he had escaped in the opposite, the court directed an acquittal. East's P. C. c.viii. s. 6.

(4) This is repealed by the 1 G. 4. c. 115., and the punishment of transportation for life, or for term of years not less than seven, or of imprison

ment

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