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in those times when a private pecuniary fatisfaction, called a weregild, was conftantly paid to the party injured, or his relations, to expiate enormous offences. As therefore, during the continuance of this cuttom, a procefs was certainly given, for recovering the weregild by the party to whom it was due; it feems that, when thefe offences by degrees grew no longer redeemable, the private procefs was ftill continued, in order to infure the infliction of punishment upon the offender, though the party injured was allowed no pecuniary compensation for the offence. An appeal of felony may be brought for crimes committed either against the parties themfelves, or their relations. The crimes against the parties themselves are larceny, rape, and arfon; and for thefe as well as for mayhem, the fufferers may inftitute this private procefs. The only crime against one's relation, for which an appeal can be brought, is that of killing him, by either murder or mandaughter; this, however, cannot be brought by every relation, but only by the wife for the death of her husband, or by the heir male for the death of his ancestor; which heirship was alfo confined, by an ordinance of Henry I. to the four neareft degrees of blood. It is given to the wife, on account of the lofs of her hufband: therefore, if the marries again, before or pending her appeal, it is loft and gone; or, if the marries after judgment, the fhall not demand execution. The heir, as was faid, muft alfo be heir male, and fuch a one as was the next heir by the course of the common law, at the time of the killing of the ancestor. But this rule has three exceptions: 1. If the perfon killed leaves an innocent wife, the only, and not the heir, fhall have the appeal: 2. If there be no wife, and the heir be accused of the murder, the perfon, who next to him would have been heir male, fhall bring the appeal: 3. If the wife kills her husband, the heir may appeal her of the death, And by the ftatute of Gloucefter, 6 Edw. I. c. 9. all appeals of death must be fued within a year and a day after the completion of the felony by the death of the party. Thefe appeals may be brought previous to any indictment; and if the appellee be acquitted thereon, he cannot be afterwards indicted for the fame offence. But if, a man be acquitted on an indictment of murder, or found guilty, and pardoned by the king, ftill he ought not (in ftrictnefs) to go at large, but be impri foned or let to bail till the year and day be past, by virtue of the ftatute 3 Hen. VII. c. 1. in order to be forthcoming to anfwer any appeal for the fame felony, not having as yet been punifhed for it; though if he has been found guilty of mandaughter on an indictment, and has had the benefit

of

of clergy, and fuffered the judgment of the law, he cannot afterwards be appealed. If the appellee be acquitted, the appellor (by virtue of the ftatute of Westminster 2. 13 Edw. I. c. 12.) fhall fuffer one year's imprisonment, and pay a fine to the king, befides reftitution of damages to the party for the imprifonment and infamy which he has fuftained: and if the appellor be incapable to make reftitution, his abettors fhall do it for him, and alfo be liable to imprisonment. If the appellçe he found guilty, he fhall fuffer the fame judgment, as if he had been convicted by indictment: but with this remarkable difference; that on an indictment, which is at the fuit of the king, the king may pardon and remit the execution; on an appeal, which is at the fuit of a private fubject to make an atonement for the private wrong, the king can no more parden it, than he can remit the damages recovered on an action of battery; and the ancient ufage was, fo late as the time of Henry IV. that all the relations of the flain fhould drag the appellee to the place of execution. However, the punithment of the offender may be remitted and difcharged by the concurrence of all parties interefted; and as the king by his pardon may fruftrate an indictment, fo the appellant by his releafe may discharge an appeal.

JUDGMENT AND EXECUTION. The judgment in petit treafon is the fame as in the lower fpecies of high treafon, namely, to be drawn on a hurdle, and hanged until dead. It was formerly different in the cafe of women, who were adjudged to be drawn and burned; but this was altered by the 30 Geo. III. c. 48. which fubjected them to the fame judgment in all refpects as men.

The judgment in murder was the fame as in other cafes of capital felony, namely, to be hanged by the neck until dead; but by 25 Geo. II, c. 37. all perfons, found guilty of murder, are to be executed on the next day but one after fentence, unless it happens to be Sunday, and then on the Monday following. The body, if in Middlefex, or London, to be immediately conveyed to the Surgeons' Hall, or fuch other place as the Surgeons' Company fhall appoint, and be diffected and anatomised. And in cafe the conviction is in any other county or place, the fentence is to be put in execution the next day but one, except it be Sunday, and the body delivered by the fheriff to fuch furgeon as the judge fhall direct. And the fentence is pronounced in open court immediately after conviction (unless the court fhall fee reafonable caufe for poftponing it) expreffing not only the ufual judgment of death, but also the time appointed for the

execution, and the marks of infamy directed for the offender.

The judge may, for reasonable cause, ftay execution; regard being always had to the true intent and purpose of the act or he may appoint the body of any fuch criminal to be hung in chains; but in no cafe whatever the body shall be buried, until it has been anatomised. The act alfo directs that a murderer after conviction fhall be confined in a feparate cell, and no perfon but the gaoler or his fervants fhall have access to him, without licence under the hand of the judge or fheriff; but in cafe the judge thall ftay execution, he may relax thefe restraints by licence in writing figned by him. Between fentence and execution, the convict is to be fed with bread and water only (except on receiving the facrament, or neceffaries adminiftered medicinally by a profeffional man) under a penalty upon the gaoler of 201. and imprisonment till it be paid, and forfeiture of his office. And if any perfon fhall refcue, or attempt to refcue, out of prison, any person committed for, or found guilty of, murder, or going to execution; he fhall be guilty of felony, without benefit of clergy. Alfo if any perfon after execution refcue or attempt to refcue the body out of the cuftody of the sheriff or his officers, or from the Company of Surgeons, or from the houfe of any furgeon, he fhall be guilty of felony, and tranfported for seven years.

MAIMING. A Mayhem or Maim, at common law, is fuch a bodily hurt as renders a man lefs able, in fighting, to defend himfelf, or annoy his adverfary: but if the injury be fuch as disfigures him only, without diminishing his corporal ability, it does not fall within the crime of mayhem. Upon this diftinction, the cutting off, difabling, or weakening a man's hand or finger, or ftriking out an eye, or fore tooth, or, as lord Coke adds, breaking his fcull, are faid to be maims; but the cutting off his ear, or nofe, is not fuch at common law. But, in order to found an indictment, or appeal of mayhem, the act must be done maliciously; though it matters not how fudden the occafion.-All maims are faid to be felony, because anciently the offender had judgment of the lofs of the fame member, &c. which he had occafioned to the fufferer; but now the only judgment, which remains at common law, is of fine and imprisonment; whence the offence feems to have been afterwards confidered more in the nature of an aggravated trefpafs, and Lord Coke claffes it as an offence "under all felonies deferving death, and above all other inferior offences."

But particular statutes have extended both the crime and the punishment. The 22 and 23 Chas. II. c. 1. is commonly

called

called the Coventry act, from its having paffed on occafion of an affault made on Sir John Coventry in the street, and his nofe being flit by perfons who lay in wait for him, in revenge, as was fuppofed, for fome obnoxious words uttered by him in parliament. It enacts that if any perfon fhall, on purpose and of malice forethought, by laying 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 difable any limb or member of any fubject, with intention, in fo doing, to maim or disfigure him; the offender, his counfellors, aiders, and abettors, fhall fuffer death, as in cafes of felony, without benefit of clergy;" but not to work corruption of blood, forfeiture of dower, or of lands, or goods.

To bring an offender within the Coventry act, there must be proof of a deliberate and pemeditated defign to do to another a perfonal injury of the fort defcribed; and it must appear that the mifchief was done in the manner defcribed therein, that is, on purpofe and of malice aforethought, and by lying in wait for that purpose.

A moft horrible practice, however, having prevailed among pickpockets and others, of lacerating those who were the objects of depredation or refentment, and the laws being found inadequate to reach and efficiently correct the evil, the legislature interfered, and by the 43 Geo. III. c. 58. (commonly called Lord Ellenborough's act) which recites, that, whereas divers cruel and barbarous outrages have been of late wickedly and wantonly committed upon the perfons of his majefty's fubjects, either with intent to murder, or to rob, or to maim, disfigure or difable, or to do other grievous bodily harm to fuch fubjects; it is enacted, that if any perfon fhall wilfully and maliciously ftab or cut any of his majefty's fubjects, with intent to murder, rob, maim, disfigure, or difable them, or to do fome other grievous bodily harm, or to obftruct, refift, or prevent the lawful apprehenfion and detainer of the perfon fo itabbing or cutting, or of any of his accomplices, for any offence, the perfon fo offending, his counsellors, aiders, and abettors fhall fuffer death without benefit of clergy: provided, that if it appear on the trial, that fuch act of ftabbing or cutting were committed under fuch circumftances, as that if death had enfued therefrom, the fame would not have amounted to murder, the perfon indicted fhail be deemed not guilty of felony.

ASSAULTS WITH FELONIOUS, MALICIOUS, OR UNLAWFUL INTENT. An aflault is any attempt or offer with force and violence to do a corporal hurt to another, whether from malice or wantonnefs; as by firiking at him, or even by holding up one's fift at him in a threatening or infulting manner, or

with

with fuch other circumstances as denote at the time an intention, coupled with a prefent ability, of ufing actual violence against his perfon; as by pointing a weapon at him within the reach of it. Where the injury is actually inflicted, it amounts to a battery, (which includes an affault,) and this, however small it may be, as by fpitting in a man's face, or any way touching him in anger without any lawful occafion. But it is excufed if the occafion were merely accidental and undefigned, or if it were lawful, and the party ufed no more force than was reasonably neceffary to accomplish the purpose, as to defend himfelf againit a prior aflauit, or to atreft the other, or make him defift from fome wrongful act or endeavour: but to make this excufe valid, the retaliation or other effort must not be exceflive, and difproportioned to the neceffity, or the provocation received. Thefe offences are punishable by fine and imprisonment, and finding fureties, or with other ignominious corporal penalties, fuch as the pillory, where they are committed with any very atrocious defign; as in the cafe of affaults with intent to murder, ravish, or commit other felonies or high mifdemeanors.

Afaulting Privy Counsellors. The penalty of this offence is mentioned in this volume, p. 11.

any

Affaulting Members of Parliament. By 11 Hen. VI. c. 11. If affault or affray be made to any lord fpiritual or temporal, knight of the hire,citizen, or burgefs, coming to, and attending the parliament, or to other counfel of the king by his commandment, proclamation fhall be made three feveral days in the town where the offence was committed for the party to yield himself before the court of king's bench within a quarter of a year, or at the next day in the term then following; and if he do not, he is to be attainted of the faid deed, and pay double damages to the party grieved; to be taxed at the difcretion of the judges, or by inqueft if needful, and make fine and ranfom at the king's will. And if he appear, and is found guilty, he is to pay to the party grieved his double damages, and to be fined as before-mentioned.

Affaults in the King's Palace. The punishment of these is already defcribed in fpeaking of the court of the lord steward of the household. See p. 569.

Affaults in Churches and Church-yards. Thefe may, if committed with the hands only, be punished with excommunication, by ftat. 5 and 6 Edw. VI. c. 4.; which further enacts, that if any perfon fhall maliciously ftrike with, or draw any "weapon in any church or church-yard, or with intent to strike, "he fhall have one of his ears cut off; or if he have no ears,

then he fhall be marked and burned in the cheek with a hot iron, having the letter F therein as a fray-maker and fighter, "and fland ipfo facte excommunicated."

Affault

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