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cause of the previous felonious intent, which the law transfers from one to the other. The same is the case 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). So also if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it k. 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 permission of the law; excused on the account of accident or self-preservation; or alleviated into manslaughter, by being either the involuntary consequence of some act, not strictly lawful, or (if voluntary) occasioned 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 satisfaction of the court and jury: the latter of whom are to decide whether the circumstances alleged are proved to have actually existed; the former, how far they extend to take away or mitigate the guilt. For all homicide is presumed to be malicious, until the contrary appeareth upon evidence'.
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 several statutes", the benefit of clergy is taken away from murderers through malice prepense, their abettors, procurers, and counsellors. 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 [ 202 ] where the fact was committed : but this was no part of the the express command of the mosaical law', '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 sentence 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.
legal judgment; and the like is still sometimes practised in the case of notorious thieves. This, being quite contrary to
1 1 Hal. P. C. 466.
mi Hal. P.C. 450.
* 23 Hen. VIII. c. 1. 1 Edw. VI. c.12. 48 5 Ph. & M. c.4.
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 [ 203 ]
•« 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
ti Hal. P.C. 380.
uxores, (et vice versa,) servis in doFoster, 107. 324. 336.
" minos, aut etiam ab homine in semet v See pag.75.
“ ipsum.” Stiernh. de jure Goth. l. 3. Omnium gravissima censetur vis, c.3. “ facta ab incolis in patriam, subditis in * i Hawk. P.C. c. 32. $ 4. i Hal.
regem, liberis in parentes, maritis 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. ii. 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. y. 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 . 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 d; 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.
ci Hal. P.C. 382. 3 Inst. 211.
d Cæsar de bell. Gall. 1.6. c.19. a Fost. 337.
e 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 25G, 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. l.d. c.25. Hawk.P.C. c. 55. $ 1.