203 and this is only an execution of that intention. (x) So, if a wife be divorced a mensa et thoro, still the vinculum matrimonii 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 crime of petit treason, which is no other than murder in *its most odious degree: except that the trial shall be [*204] 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. 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; (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 burnt for murdering her husband; (d) and it is now the usual punishment for all sorts of treason committed by those of the female sex. (e) (25) 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 statutes 23 Hen. VIII, c. 1, and 4 and 5 P. and M. c. 4. CHAPTER XV. 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 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. I. 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; be[*206] cause they do not weaken but only disfigure him. (x) 1 Hawk. P. C. 89. 1 Hal. P. C. 380. (y) 1 Hal. P. C. 381. (b) Foster, 106. 1 Hal. P. C. 378. 2 Hal. P. C. 184. (z) Ibid. (a) Fost, 337. (e) see page 93. (c) 1 Hal. P. C. 382. 3 Inst. 311. (d) Cæsar de bell. Gall. l. 6, c. 19. (a) See book III, p. 121. (b) Britt. l. 1, c. 25. 1 Hawk, P. C. 111. (25) It was abolished by 30 Geo. III, c. 48. The punishment is now death by hanging 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) 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 bonorum ademptione." (g) 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 Henry 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 of 37 Hen. VIII, c. 6, which directs, that if a man shall maliciously and unlawfully cut off the ear of any of the *king's subjects, he shall not only [*207] 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 and 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. () 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 *ensues, is made [*208] felony without benefit of clergy by statute 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. (1) (c) 8 Inst. 118-Mes, si la pleynțe 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. (Brit. c. 25.) (d) Stiernhook de jure Šueon. l. 3, t. 3. (e) See page 12. (f) 1 Hawk. P. C. 112. (g) Brac. fol. 144. (h) Sir Edward Coke (3 Inst. 62) has transcribed a record of Henry the Third's time (Claus. 13 Hen. II, 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 wire. (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 the 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 they relate to offenses against the person, were For the most recent revision of the law on this Penal servitude for life is now the extreme mayhem, see Chick v. State, 7 Humph., 161; (1) All the previous statutes, so far as repealed by 7 Wm. IV, and 1 Vic., c. 85. subject, see statute 24 and 25 Vic., c. 100. penalty. As to the proper mode of charging State v. Briley, 8 Port. (Ala.), 472. 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 woman, 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. (2) 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 of the statute. (7) 2. In order to show this, it must appear that the woman has substance, either real or personal, or is an heir apparent. (m) 3. It must appear that she was taken away against her will. 4. It must also appear that she was afterwards married, or defiled. And though possibly the marriage or defilement might be by her subsequent consent being won thereunto by flatteries after the taking, yet this is felony, if the first taking were against her will: (n) and so vice versa, if the woman be originally taken away with her own consent, yet if she afterwards refuse to continue with the offender, and be forced against her will, she may from that time as properly *be said to be taken against her will, as if she never had given any consent at all; [* 209] for till the force was put upon her she was in her own power. (o) It is held that a woman thus taken away and married may be sworn and give evidence against the offender, though he is her husband de facto; contrary to the general rule of law; because he is no husband de jure, in case the actual marriage was also against her will. (p) In cases, indeed, where the actual marriage is good, by the consent of the inveigled woman obtained after her forcible abduction, Sir Matthew Hale seems to question how far her evidence should be allowed: but other authorities (q) seem to agree, that it should even then be admitted; esteeming it absurd, that the offender should thus take advantage of his own wrong, and that the very act of marriage, which is a principal ingredient of his crime, should (by a forced construction of law) be made use of to stop the mouth of the most material witness against him. An inferior degree of the same kind of offence, but not attended with force, is punished by the statutes 4 and 5 P. and M. c. 8, which enacts, that if any person, above the age of fourteen, unlawfully shall convey or take away any woman child unmarried (which is held (r) to extend to bastards as well as to legitimate children), within the age of sixteen years, from the possession and against the will of the father, mother, guardians, or governors, he shall be imprisoned for two years, or fined at the discretion of the justices; and if he de- · flowers such maid or woman child, or without the consent of parents contracts matrimony with her, he shall be imprisoned five years, or fined at the discretion of the justices, and she shall forfeit all her lands to her next of kin, during the life of her said husband. So that as these stolen marriages, under the age of sixteen, were usually upon mercenary views, this act, besides punishendanger 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.) (l) 1 Hawk. P. C. 110. (m) 1 Hal. P. C. 660. 1 Hawk. P. C. 109. (0) 1 Hawk. P. C. 110. (p) 1 Hal. P. C. 661. (r) Stra. 1162. (n) 1 Hal. P. C. 660. (q) Cro. Car. 488. 3 Keb. 193. State Trials. V, 455. (2) This offense is now punishable under statute 24 and 25 Vic., c. 100. The extreme penalty is fourteen years' penal servitude. The guilty party is made incapable, by the statute, of taking any estate or interest in the property of the woman married, but the property, on his conviction, is to be settled as the court of chancery may appoint. [*210] Yi, c. 33. (3) ing the seducer, wisely removed the temptation. But this latter part of the Rape was punished by the Saxon laws, particularly those of King Athelstan, (w) with death: which was also agreeable to the old Gothic or Scandinavian constitution. (x) But this was afterwards thought too hard: and in its stead another severe but not capital punishment was inflicted by William the Conqueror; viz., castration and loss of eyes; (y) which continued until after Bracton wrote, in the reign of Henry the Third. But, in order to prevent malicious accusations, it was then the law (and, it seems, still continues to be so in appeals of rape), (2) that the woman should immediately after, dum recens fuerst maleficium, go to the next town, and there make discovery to some credible persons of the injury she has suffered; and afterwards should acquaint the high constable of the hundred, the coroners, and the sheriff with the outrage. (a) This seems to correspond in some degree with the laws of Scotland and Arragon, (9) which require that complaint must be made within twenty-four hours: though afterwards, by statute Westm. 1, c. 13, the time of limitation in England was extended to forty days. At present there is no time of limitation fixed: for as it is usually now punished by indictment at the suit of the king, the maxim of law takes place, that nullum tempus occurrit regi; but the jury will rarely give credit to a stale complaint. During the (8) See book I, page 437, &c. (t) Deut. xxii, 25. (u) Cod. 9, tit. 18. (3) The act 4 and 5 P. and M., c. 8, is repealed, and the subject of this paragraph is cov. ered by 24 and 25 Vic., c. 100. See Roscoe Cr. Ev., 6th ed., 244. former period also it was held for law, (c) that the woman (by consent of the judge and her parents) might redeem the offender from the execution of his sentence, by accepting him for her husband; if he also was willing to agree to the exchange, but not otherwise. *In the 3 Edw. I, by the statute Westm. 1, c. 13, the punishment of [*212] rape was much mitigated; the offence itself of ravishing a damsel within age (that is, twelve years old), either with her consent or without, or of any other woman against her will, being reduced to a trespass, if not prosecuted by appeal within forty days, and subjecting the offender only to two years' imprisonment, and a fine at the king's will. But this lenity being productive of the most terrible consequences, it was in ten years afterwards, 13 Edw. 1, found necessary to make the offence of forcible rape felony by statute Westm. 2, c. 34. And by statute 18 Eliz. c. 7, it is made felony without benefit of clergy; as is also the abominable wickedness of carnally knowing and abusing any woman child under the age of ten years: in which case the consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion. Sir Matthew Hale is indeed of opinion. that such profligate actions committed on an infant under the age of twelve years, the age of female discretion by the common law, either with or without consent, amount to rape and felony: as well since as before the statute of Queen Elizabeth; (d) but that law has in general been held only to extend to infants under ten: though it should seem that damsels between ten and twelve are still under the protection of the statute Westm. I, the law with respect to their seduction not having been altered by either of the subsequent statutes. (4) A male infant, under the age of fourteen years, is presumed by law incapable to commit a rape, and therefore it seems cannot be found guilty of it. For though in other felonies malitia supplet ætatem, as has in some cases been shown; yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind. (e) (5) The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind: (7) not allowing *any punishment for violating the chastity of her who hath indeed no chastity at all, or at least [*213] hath no regard to it. But the law of England does not judge so hardly of offenders, as to cut off all opportunity of retreat even from common strumpets, and to treat them as never capable of amendment. It therefore holds it to be felony to force even a concubine or harlot; because the woman may have forsaken that unlawful course of life: (g) for, as Bracton well observes, (h) "licet meretrix fuerit antea, certe tunc temporis non fuit, cum reclamando nequitia ejus consentire noluit. (6) As to the material facts requisite to be given in evidence and proved upon an indictment of rape, they are of such a nature, that though necessary to be known and settled, for the conviction of the guilty and preservation of the innocent, and therefore to be found in such criminal treatises as discourse of these matters in detail, yet they are highly improper to be publicly discussed, except (c) Glanv. l. 14, c. 6. Bract. 1. 3, c. 28. (e) Ibid. (f) Cod. 9, 9, 22. Ff. 47, 2, 39. (d) 1 Hal. P. C. 631. (g) 1 Hal. P. C. 629. 1 Hawk. P. C. 108. (h) fol. 147. (4) The punishment for rape, and also for carnal knowledge of a female child under ten years of age, was reduced to transportation for life, by statute 4 and 5 Vic., c. 56, and now to penal servitude or imprisonment. Statute 24 and 25 Vic., c. 100. (5) But a boy under the age of puberty, or a woman, or a husband in respect to his own wife, may become guilty as principal in the second degree of this offence of rape. In Commonwealth v. Green, 2 Pick, 380, it was held that a boy under fourteen might be guilty of an assault with intent to commit rape. And see Williams v. State, 14 Ohio, 222. But the decisions generally are the other way. See 1 Bish. Cr. L., 7th ed., § 746. (6) And whether she has forsaken it or not, she is entitled to the protection of the law. See Wright v. State, 4 Humph., 194; Pleasant v. State, 15 Ark., 624. But her character may have an important bearing on the credibility of he: accusation. VOL. II.-51 401 |