dissected and anatomized:(9) and that the judge may direct his body to be afterwards hung in chains, (87) 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. (88) 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 a leathern sack with a live dog, a cock, a viper, and an ape, and so cast into the sea. (r) 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. (s) And the Persians, according to Herodotus, entertained the same notion when they adjudged all persons who killed their reputed parents to be bastards. And upon some such reason as this we must account for *the omission of an exemplary punishment 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. (t) [*203 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; (u) although, on account of the violation of private allegiance, it is stigmatized as an inferior species of treason. (v) And thus, in the ancient Gothic constitutions, we find the breach both of natural and civil relations ranked in the same class with crimes against the state and the sovereign.(w) (g) Fost. 107. (r) Ef. 41, 9, 9. (8) Cic. pro S. Roscio, 25. (t) 1 Hal. P. C. 380. (u) Foster 107, 324, 336. (v) See page 75. (w)" Omnium gravissima censetur vis factu ab incolis in patriam, subditis in 'regem, liberis in parentes, maritis in uxores, (et vice versa,) servis in dominos, aut etiam ab homine in semei ipsum." ["That violence which is exerted by inhabitants against their country, by subjects against their king, by children against their parents, by husbands against their wives, by wives against their husbands, by servants against their masters, or even by man against himself, is considered as the worst of all crimes."] Stiernh. de jure Goth. l. 3, c. 3. given by the 4th and 7th sections of stat. 25 Geo. II. c. 37, to stay the execution and relax the restraints imposed by the act, in order to take the opinion of the judges upon the following questions:-1st. Whether the statute, so far as it requires the time of the execution to be expressed in pronouncing the sentence, is not to be considered as directory only, without invalidating the judgment when omitted, or preventing the entry of the proper judgment and record, specifying the time of execution. 2d. Whether, supposing the specification of time to be a necessary act in pronouncing sentence, the error was not legally corrected by what was done in open court the next morning, the court not having proceeded to any other business whatever in the intermediate time. The judges, on conference, held that the stat. 25 Geo. II. c. 37 is directory only so far as it requires the time of the execution to be expressed in pronouncing the sentence, and therefore the error in this case was rightly and legally corrected by the proceedings on the following morning, no other business having intervened between the conviction and pronouncing sentence. The prisoner was accordingly executed. 2 Burn, J. 24 ed. 1044.-CHITTY. (87) The judge, if he thinks it advisable, may afterwards direct the hanging in chains, by a special order to the sheriff; but it does not form any part of the judgment. Fost. 107.-CHRISTIAN. (88) The stat. 25 Geo. II. c. 37 was repealed, but re-enacted, in almost all its provisions, by stat. 9 Geo. IV. c. 31. By stat. 2 & 3 W. IV. c. 75, s. 16, however, the enactment of this last statute as to dissection, is repealed, and the court must direct that the prisoner shall be either hung in chains or buried within the precincts of the prison. But, by stat. 4 & 5 W. IV. c. 26, s. 1, so much of the stat. 2 & 3 W. IV. c. 75, s. 16 as authorizes the hanging the body of a murderer in chains is repealed; and, by stat. 6 & 7 W. IV. c. 30, the enactment as to the time of execution is also repealed, and sentence may be pronounced as in other capital offences. And under this last statute sentence of death may be recorded.-STEWART. Petit treason, (89) according to the statute 25 Edw. III. c. 2, may happen three ways: by a servant killing his master, 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 traitorous intention was hatched while the relation subsisted between them, and this is only an execution of that intention. (x) So, if a wife be divorced a mensa et thoro, (90) still the vinculum matrimonii (91) subsists; and if she kills such divorced husband she is a traitress. (y) 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 *204] crime of petit treason, which is no other than murder in *its most odious degree, except that the trial shall be as in cases of high treason, before the improvements therein made by the statutes of William III. (a) 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. (92) 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 burned; (c) the idea of which latter punishment seems to have been handed down to us by the laws of the ancient Druids, which condemned a woman to be burned for murdering her husband, (d) and it is now the usual punishment for all sorts of treasons committed by those of the female sex. (e)(93) 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 statute 23 Hen. VIII. c. 1, and 4 & 5 P. and M. c. 4.(94). (x) 1 Hawk. P. C. 89. 1 Hal. P. C. 380. (y) 1 Hal. P. C. 381. (z) Ibid. (a) Fost. 337. (b) Foster, 106. 1 Hal. P. C. 318. 2 Hal. P. C. 184 (d) Cæsar de Bell. Gall. l. 6, c. 18. (89) The distinction between petit treason and murder is now entirely abolished. 9 Geo. IV. c. 31, s. 2.-STEWART. (90) [From board and bed.] (91) The bond of marriage.] (92) It has been determined that a person indicted for petit treason may upon the evidence of one witness be convicted of murder, though acquitted of the petit treason. Radbourne's case, Leach, 363.-CHRISTIAN. State of Minn. v. Annie Bilansky, 3 Minn. 255 (1859) et seq. Burt v. The State, 39 Ala. 644 (1866). (93) By the 30 Geo. III. c. 48, women shall no longer be sentenced to be burned; but in all cases of high and petit treason they shall be condemned to be drawn and hanged; and in petit treason they shall be subject besides to the same judgment with regard to dissection and the time of execution as is directed by the 25 Geo. II. c. 37 in cases of murder. Soon after the passing of the 25 Geo. II. c. 37, the majority of the judges agreed that in the case of men convicted of petit treason the judgment introduced by that statute should be added to the common-law judgment for petit treason. Fost. 107. -CHRISTIAN. (94) Nothing reflects more credit upon the laws of this country than that enlightened and humane spirit, which, discarding the sanguinary criminal codes of Europe, has made a sensible discrimination in regard to the turpitude of crime, and not only prescribed a rational mode of punishment, but justly graduated the punishment in proportion to the enormity and danger of the offence. Robbins v. The State, 8 Ohio, 169. CHAPTER XV. OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS. [*205 *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 inquire into such other crimes and misdemeanors as more peculiarly affect the security of his person while living. Of these some are felonies, and in their nature capital; others are simple misdemeanors, and punishable with a lighter animadversion. Of the felonies, the first is that of mayhem. 1. Mayhem, mayhemium, was in part considered, in the preceding book, (a) 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. (b) 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. (1) [*206 *By the ancient 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; (c)(2) which is still the law in Sweden. (d) But this went afterwards out of use, partly because the law of retaliation, as was formerly shown, (e) 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, (f) unless perhaps the offence of mayhem by castration, which all our old writers held to be felony: "et sequitur aliquando pœna capitalis, aliquando perpetuum exilium, cum omnium bono (a) See book iii. page 121. (b) Britt. l. 1, c. 25. 1 Hawk. P. C. 111. (c) 3 Inst. 118. Mes, si la pleymte soit faite de femme qu'avera tolle a home ses membres, en tiel case perdra le feme la une meyn par jugement, come le membre dount ele avera trespasse. [But if the complaint be preferred against a woman that she had mutilated a man, she (f) 1 Hawk. P. C. 112. (1) The revised statutes of New York provide that every person who, from premeditated design, or with intent to kill or commit any felony, shall cut or disable the tongue, put out an eye, or slit or destroy the lip, or slit or destroy the nose, or cut off or disable any limb or member of another, on purpose, is punishable by imprisonment in a state prison for such term as the court shall prescribe, not less than seven years. I Barbour's Crim. Law, 123 et seq. 50 N. Y. 607 (Sickels) 1872. The essential requisites to constitute mayhem are malice, or that the injury should result from an attempt to kill or commit felony. 1 Barbour's Crim. Law, 124 et seq. I Wharton's Crim. Law, 551 et seq. Mayhem is an aggravated trespass. Wait's Actions and Defences, vol. 1, 336. Our American legislation on this subject is modelled chiefly on the English, but among our different states it is not quite identical. 2 Bishop's new Crim. Law, 582 et seq. See Burke v. People, 4 Hun. (N. Y.) 486, on intentional disfigurement. Mayhem is a felony by statute in Georgia. Adams v. Barrett, 5 Georgia, 413 (1849). (2) [Limb for limb.] rum ademptione." (g)(3) And this although the mayhem was committed upon the highest provocation. (h) 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' *207] maliciously 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 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 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 disfigure him, such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy.(k)(4) Thus much for the felony of mayhem: to which may be 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 *208] *ensues, is made felony without benefit of clergy by statute 9 Geo. I. c. 22; and thereupon one Arnold was convicted in 1723 for shooting (g) Bract. fol. 144. Sir Edward Coke (3 Inst. 62) has 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, being indicted for dealing thus with John the monk, who was caught in adultery with the wife. (i) 3 Inst. 62. (k) On this statute Mr. Coke, a gentleman of Suffolk, and one Woodburn, a laborer, 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 to determine 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 the principal intent to murder, and they were both condemned and executed. State Trials, vi. 212. (3) ["And sometimes capital punishment follows, sometimes perpetual exile with the loss of all his goods."] (4) These statutes are now all repealed. "So much of the 5 Hen. IV. c. 5, as relates to cutting the tongues or putting out the eyes of any of the king's liege people, and to any assault upon the servant of a knight of the shire in parliament," by the 9 Geo. IV. c. 31; the 37 Hen. VIII. c. 6 wholly, by the 7 & 8 Geo. IV. c. 27; and the 22 & 23 Geo. II. c. I wholly, by the 9 Geo. IV. c. 31; and the old law with respect to mayhem is now merged in the last-mentioned statute, sects. 11 and 12 of which provide ample remedies for that offence. There are, however, two species of maiming not included in the 9 Geo. IV. c. 31, it having been previously found necessary to make them the subjects of distinct enactments, namely, injuries done to the persons of individuals by means of wanton or furious driving, and by means of spring-guns and man-traps. By the 1 Geo. IV. c. 4, it is enacted that if any person whatever shall be maimed or otherwise injured by reason of the wanton and furious driving or racing, or by the wilful at lord Onslow, but, being half a madman, was never executed, but confined in prison, where he died about thirty years after.(5) 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, 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 woman, shall be deemed principal felons; and, by statute 30 Eliz. c. 9, the benefit of clergy is taken away from all such felons, who shall be principals, procurers, or accessaries before the fact. (6). In the construction of this statute it hath been determined,—1. That the indictment must allege that the taking was for lucre; for such are the words misconduct of any coachman or other person having the charge of any stage-coach or public carriage, such wanton or furious driving or racing, or wilful misconduct, of such coachman or other person, shall be, and the same is thereby declared to be, a misdemeanor, and punishable as such by fine or imprisonment. Proviso, not to extend to hackney-coaches drawn by two horses only and not plying for hire as stage-coaches. This, it will be observed, applies only to cases where some injury short of death is inflicted. Where death ensues from the negligence or misconduct, of such persons, the offence amounts either to murder or manslaughter. See Rex v. Walker, 1 ̊C. & P. 320. By the 7 & 8 Geo. IV. c. 18, s. 1, it is enacted that if any person shall set or place, or cause to be set or placed, any spring-gun, man-trap, or other engine calculated to destroy human life or inflict grievous bodily harm, with the intent that the same, or whereby the same, may destroy or inflict grievous bodily harm upon a trespasser, or other person coming in contact therewith, the person so setting or placing, or causing to be so set or placed, such gun, trap, or engine as aforesaid, shall be guilty of a misdemeanor. -CHITTY. (5) All the previous statutes were repealed, so far as they extended to offences relating to the person, by statute 1 Vict. c. 85, by s. 2 of which the administering poison, or stabbing, cutting, or wounding, or causing bodily injury to, any person dangerous to life, with intent to commit murder, is felony punishable with death; and the following crimes are felony punishable with transportation for life or fifteen years,-and now to penal servitude, or imprisonment for three years,-viz., the attempting to administer poison, etc. or shooting at any person, or drawing a trigger or attempting to discharge loaded arms at any person, or to drown, suffocate, or strangle, with intent to murder, though no bodily injury be effected, (s. 3;) the attempting by any such means to maim, disfigure, or disable any person, (s. 5;) the sending explosive substances, or throwing destructive matter, with intent to harm, maim, or disfigure any person, (s. 5;) and the trying to procure abortion by poison or otherwise. S. 6. And the malicious stabbing or wounding any person, without the intent to murder, is a misdemeanor. 14 & 15 Vict. c. 19. And now also, by stat. 9 & 10 Vict. c. 25, any mayhem occasioned by maliciously causing gunpowder or other substance to explode, or the causing or delivering to, or causing to be taken by, any person any dangerous thing, or the casting at or applying to any person any corrosive fluid or dangerous substance with intent to maim, is a felony, and punishable with transportation for life, or for any term not exceeding three years, with or without hard labor and solitary confinement. Also the administering chloroform, laudanum, or other stupefying drug, with intent to enable the offender to commit a felony, is a felony itself, and punishable with transportation for life or not less than seven years, or imprisonment for three years, (14 & 15 Vict. c. 19, s. 3,) and now with penal servitude. 16 & 17 Vict. c. 99.-STEWART. See 24 & 25 Vict. c. 100. In (6) These statutes are both wholly repealed. For the present law see stat. 24 & 25 Vict. c. 100, 8 53. I Bishop's New Crim. Law, 340. As to whether this statute 3 Hen. is common law in our states, we have no decisions. Bishop on Statutory Crimes, 392. the State v. Findley, I S. C. 107 (Brevard, 1802) it was held not necessary under the statute of the state of South Carolina to allege or prove that the female had lands or goods, etc. in an action for forcible abduction. I Russel on Crimes, 702 et seq. |