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Act. Indeed, within the last few years a wide-spread and growing belief that no benefit to the public at large arises from the sight of the death of a criminal, has induced the legislature now to abolish altogether executions for murder without the prison walls. And it has accordingly been enacted by the statute 31 Vict. c. 24, that the judgment of death to be executed on any prisoner for murder shall be carried into effect within the walls of the prison in which he shall be confined at the time of execution, in the presence of the sheriff, gaoler, chaplain, surgeons and such other officers of the prison as the sheriff requires; and of such magistrates, relatives of the prisoner, or other persons as the sheriff or visiting justices shall think proper to admit: and that the body of the offender shall, as the general rule, and subject to the discretion of a secretary of state, be buried within the prison precincts.
[By the Roman law parricide, or the murder of one's parents or children, was punished in a much severer manner than
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 (x). Solon, however, in his laws made none against parricide; apprehending it impossible that any one should be guilty of so unnatural a barbarity (y). And the Persians, (according to Herodotus,) entertained the same notion, when they adjudged all persons who killed their reputed parents to be bastards (z).] And in like manner our English laws make no particular provision with regard to this crime, so as to distinguish it in any respect from that of simple murder (a). Yet formerly,
(x) Ff. 41, 9, 9.
(a) Blackstone (vol. iv. p. 202) seems inclined to attribute the want of any distinction with regard to
parricide in our law, to the same assumption on the part of its founders as is referred to in the text, viz., that of the impossibility of the crime.
where a servant killed his master, a wife her husband,or an ecclesiastical person, (either secular or regular,) his superior to whom he owed faith and obedience (6),—this was accounted a species of treason, called parva proditio or petit treason (c). From which it followed that, in the particular case also where a parricide was committed, by one who happened to stand in the relation of servant to his parent, he was guilty of petit treason, though the crime was so ranked under no other circumstances (d). For all these cases involved, in contemplation of law, not only murder, but murder aggravated by a species of treason; on account of the violation of private allegiance (e). And thus in the antient 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 (f). Nor was the distinction merely nominal, the punishment being more exemplary than in the case of simple murder : for the sentence for petit treason, in a man, was to be drawn and hanged (9); and, in a woman, to be drawn and burned. But the crime itself of petit treason is now abolished; it being provided by 24 & 25 Vict. c. 100, s. 8, that any killing which amounted to
(6) “A clergyman," (says Blackstone, vol. iv. p. 203,) "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 bishop,—and therefore to kill
any of these is petit treason,” and he cites 1 Hale, P. C. 381.
(c) As to petit treason, see 25 Edw. 3, c. 2; 1 Hale, P. C. 380.
(d) Hale, ubi sup.; Bl. Com. ubi sup.
(e) Foster, 107, 324, 336.
(f) “ Omnium gravissima censetur vis facta incolis in patriam, subditis in regem, liberis in pa
rentes, maritis in uxores (et vice rersâ), servis in dominos, aut etiam ab homine in semet-ipsum.”. Stiernh. de Jure Goth. 1. 2, c. 3.
(9) 1 Hale, P. C. 382; 3 Inst. 211. Blackstone (ubi sup.) remarks that this punishment of burning, in the case of the woman, seems to have been handed down to us by the laws of the antient Druids; which condemned a woman (see Cæs. de Bell. Gall. 1. 6, c. 19) to be burned for murdering her husband. It was, however, at one period, the usual punishment for all treasons committed by those of the female
that offence before 9 Geo. IV. c. 31, shall now be decmed to be murder only, and no greater offence.
II. Attempts to murder (h).-Not only the crime of actual murder, but that of endeavouring to commit it, until very recently, in certain cases, amounted to a capital felony (i). This crime, however, is no longer punishable with death under any circumstances,-and it is now provided by 24 & 25 Vict. c. 100, s. 11, that whosoever shall administer to (k), or cause to be administered to or taken by, any person, any poison or other destructive thing; or shall by any means whatsoever wound or cause any grievous bodily harm to any person, with intent in any of the cases aforesaid to commit murder (1),-shall be guilty of felony, and on conviction may be sentenced to penal servitude for life, or for not less than five years (m); or to imprisonment for any term not exceeding two years,
with or without hard labour and solitary confinement. And by sect. 14 of the same Act, that whosoever shall attempt to administer to, or attempt or cause to be administered to or to be taken by, any person, poison or other destructive thing; or who shall shoot at any person (n); or shall by drawing a trigger, or other manner, attempt to discharge any kind of loaded arms at any person ; or shall attempt to drown, suffocate or strangle any person,—with intent, in any of the cases aforesaid, to commit murder, shall (whether any bodily injury be effected or not) be guilty of felony, and liable to the same punishments as just mentioned. Again, by sect. 13, whosoever shall set fire
(1) As to a conspiracy to commit murder, vide post, c. IX. As to threatening murder, vide post, c. X.
(i) Under 7 Will. 4 & 1 Vict. c. 85 (repealed by 24 & 25 Vict. c. 95), attempting to commit murder by poisoning, wounding, &c., was punishable with death.
(k) As to what constitutes an
administration of poison, see R. v. Michael, 9 Car, & P. 356.
(1) The jury must be satisfied of the intention to murder. See R. v. Crnise, 8 Car. & P. 541.
(m) See 27 & 28 Vict. c. 47.
(n) See Reg. r. Smith, 25 L. J. (M. C.) 29.
to, cast away, or destroy, any ship or vessel,--and by the 12th section, whosoever by the explosion of gunpowder, or other explosive substance, shall destroy or damage any building,—with such intent, shall be liable to be similarly punished. Moreover, the same Act contains (sect. 15) a general provision making it felony (and awarding the same punishments as already mentioned) for any person to attempt to commit murder, by any means other than those above specified (o).
III. Acts causing, or tending to cause, danger to life or bodily harm.
Mayhem, (whence the modern phrase to maim,) is a civil injury; consisting, as we may remember, in 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. But it is also a heinous crime; and 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 (p). [But this went afterwards out of use; so that by the common law, as it for a long time stood, mayhem was only punishable by fine and imprisonment(9); unless, perhaps, the offence of mayhem by castration, which all our old writers held to be felony; "et sequitur aliquando pæna capitalis, aliquando perpetuum exilium cum omnium bonorum ademptione” (r). And this, although the mayhem was committed on the highest provocation (8).]
(0) By 14 & 15 Vict. c. 100, s. 9, per jugement, come le membre on an indictment charging the actual dount ele avera trespasse."— Brit. commission of any felony or misde- c. 55. Blackstone says (vol. iv. meanor, there may be a verdict that p. 206), that the law of membrum the party accused was not guilty of pro membro was in his time still the offence charged, but was guilty in use in Sweden; and he cites of an attempt to commit the same. Stiern. I. 3, p. 3.
(P) 3 Inst. 118. “ Mes, si la (9) Hawk. P. C. b. 1, c. 44, s. 3. pleynte soit faite de femme qu'avera (r) Br. 1. 3, 2, c. 23. tolle a home ses membres, en tiel (8) Sir E. Coke (3 Inst. 62) has case perdra la feme la une meyn transcribed a record of Henry the
By different statutes, however, viz. 5 Hen. IV. c. 5, 37 Hen. VIII. c. 6, and 22 & 23 Car. II. c. 1,-called the Coventry Act (t),-specific provisions were, in course of time, made against the offence of maiming, cutting off, or disabling a limb or member (u). But these statutes also have been repealed, so far as regards the matter in question (x); and the provision now in force, viz. the 24 & 25 Vict. c. 100, s. 18, enacts that whosoever shall unlawfully and maliciously, by any means whatsoever, wound(y) or cause any grievous bodily harm to any person; or shoot at any person (2); or by drawing a trigger or in any other
third's time (Claus. 13 Hen. 3, m. 9), by which a gentleman of Somersetshire appears to have been indicted for dealing thus with John the monk, whom he had caught in adultery with his wife.
(t) This Act was 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. (4 Bl. Com. 206.)
(u) The Coventry Act made it a capital felony to disable with intent to maim or to disfigure. On this statute a Mr. Coke, and one Woodburn, a labourer, were indicted in 1722; Coke for hiring and abetting Woodburn, and Woodbarn 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 attempt to murder was, at common law, 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 profes
sion 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 to murder; and therefore was 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 an attack happens not to kill but only to disfigure him; he may be indicted on this statute: and it may 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 their principal intent to murder; and they were both condemned and executed. (See State Trials, vi. 212.)
(«) The Coventry Act was repealed by 7 & 8 Geo. 4, c. 27.
(y) As to what amounts to wounding,” see Jenning's case, 9 Car. & P. 130.
(1) See Smith's case, 1 Dearsley's C. C. 559. As to shooting by smugglers, &c., vide post, chap. XI.