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The punishment of petit treason, in a man, is to be drawn and hanged, and in a woman to be drawn and burut (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 treasons committed by those of the female sex (e) (44). 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. & M. c. 4

CHAPTER XV

OF OFFENCES AGAINST THE PERSONS OF
INDIVIDUALS.

HAVING in the preceding chapter considered the principal crime, or pblic 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 (6). 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, [*206] are not held to be mayhems at common law; because they do not weaken but only disfigure him.

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 vro membro (c); which is still the law in Sweden (d). But this went after

(c) 1 Hal. P. C. 382. 3 Inst. 311.

(d) Cæsar de bell. Gall, l. 6, c. 18.

(e) See page 93.

(a) See book III. pagė 121.

(6) Britt. 2. 1, c. 25. 1 Hawk. P. C. 111.

(44) By the 30 Geo. III. c. 48, women shall no longer be sentenced to be burnt; 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

(e) 3 Inst. 118.-Mes, si la pleynte 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 Sueon. 1. 3, 1. 3.

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 judg ment introduced by that statute should be add ed to the common law judgment for petit tres son. Fost. 107,

wards out of use: partly because the law of retaliation, as was formerly shewn (e), is at best an inadequate rule of punishment; and partly be cause 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, mayhen. 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 poena 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 37 Hen. VIII. c. 6, which directs, that if a

man shall maliciously and unlawfully cut off the ear of any of the [*207] *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 101, 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) (1).

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(1) These statutes are now all repealed. So much of the 5 H. 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 as sault upon the servant of a knight of the shire in parliament," by the 9 Geo. IV. c. 31; the 37 H. VIII. c. 6, wholly, by the 7 and 8 Geo. IV. c. 27; and the 22 and 23 G. II. c. 1, wholly, by the 9 G. IV. c. 31: and the old law with respect to mayhem is now merged in the last

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 en danger the disfiguring him; and in such attack hap pens not to kill, but only to disfigure him; he ma be indicted on this statute; and it shall be left te the jury to determine whether it were not a desig to murder by disfiguring, and consequently a ma cious intent to disfigure as well as to murder. Ac cordingly the jury found them guilty of such pr vious intent to disfigure, in order to effect th principal intent to murder, and they were both co demned and executed. (State Trials, VI. 212.)

mentioned statute, ss. 11 and 12 of which pre vide ample remedies for that offence. Se those clauses, and the cases bearing upor them, set out in full, ante, 194, note (21) 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 indi viduals, by means of wanton or furious dri

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 felony without benefit of clergy by [208] 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 (3), (4).

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 recieve 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 (5).

ving, and by means of spring-guns and mantraps.

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 misconduct of any coachman or other person having the charge of any stagecoach 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 imprison ment. Proviso, not to extend to hackney coaches drawn by two horses only, and not plying for hire as stagecoaches. 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. and P. 320, ante, 182, note (7). +

By the 7 and 8 G. IV. c. 18, § 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 de

t Best, C. J., in his celebrated charge to the Wilts. Grand Jury, 1827, alluding to cases where death ensues from a collision of carriages, is reported to have said, "the collision of carriages may be either accidental or from he negligence of one or both of the drivers; and, in such case, it will be manslaughter. And I include within the term negligence, not only careless driving, but exciting the horses to such speed that they cannot be stopped or properly directed; the knowingly driing unbroken or vicious horses, overloading coach, or using one that has insufficient strength or improper harness. But if a man

stroy 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 per son 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 (2).

(2) In New-York any one who, from premeditated design, evinced by lying in wait or otherwise, or with intent to commit a felony, purposely cuts out or disables the tongue of another, or puts out his eye, or slits his lip, or slits or destroys his nose, or cuts off or disables any limb or member, is punishable with imprisonment not less than seven years. (2 R. S. 664, § 27.)

(3) See note 24, p. 196, ante.

(4) This statute also has been wholly repealed by the 7 and 8 Geo. IV. c. 27, and the offence alluded to in the text is now punishable under the 9 Geo. IV. c. 31. ss. 11 and 12, vide ante, 194, note (21).

(5) These statutes are both wholly repeal ed by the 9 Geo. IV. c. 31, by ◊ 19 of which it is enacted, that where any woman shall have any interest, whether legal or equitable, prereckless of consequences, either from mere wantonness, or from an angry feeling against the proprietor of a rival coach, but intentionally, drives one carriage against another, and thereby occasions the death of a person in either carriage, that is murder, although the driver did not contemplate so fatal an issue. Disguise it under what terms you will, whether it originates in rivalry, impatience, or mere wanton indifference to the safety of life, such furious driving manifests that strocious wick edness of disposition which lawyers call ma lice prepense."

In the construction of this statute it hath been determir.ed, 1. That the indictment must allege that the taking was for lucre, for such are the words of the statute (1). 2. In order to shew 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. Í 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) (7): and so vica versa, if the woman be originally taken away by her own consent, yet if she afterwards refuse to continue with the offender, and be forced against her will, [*209] 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; 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 (8).

() 1 Hawk. P. C. 110.

(m) 1 Hal. P. C. 660. 1 Hawk. P. C. 109. (n) 1 Hal. P. C. 660.

(0) 1 Hawk. P. C. 110.

sent or future, absolute, conditional or contingent, in any real or personal estate, or shall be an heiress presumptive, or next of kin to any one having such interest, if any person shall, from motives of lucre, take away or detain such woman against her will, with intent to marry or defile her, or to cause her to be married or defiled by any other person, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be transported for life, or for any term not less than seven years, or to be prisoned, with or without hard labour, for any term not exceeding four years (6).

(6) Any person who takes a female under the age of fourteen from her father, mother, guardian, or other person having the legal charge of her person without their consent, either for the purpose of prostitution, concuinage, or marriage, may be imprisoned not more than three years, and fined not more than 1000 dollars. If any woman, though above that age, be taken by any one unlawfully, with the intent to compel her by force, menace, or duress, to marry him or another, or to be defiled: the offender may be imprisoned not less than ten years. The punishment is the same if the offence be consummated by procuring the marriage or defilement. 2 R. S. 663, § 24, 25, 26. The woman, it will be perceived, need not be an heiress; nor is it necessary that the

(p) 1 Hal. P. C. 661.

(q) Cro. Car. 488. 3 Keb. 193. State Trials, V. 455.

offence be committed for the sake of gain.

(7) But if the forcible abduction is confined to one county, and the marriage be solem. nized by consent in another, the defendant cannot be indicted in either, though had the force been continued into the county where the marriage took place, no subsequent consent would avail. Cro. Car. 488. Hob. 183. Hawk. b. 2. c. 25. s. 40. 1 Russ. 820, 1. 1 East, P. C. 453. Where the female is under no restraint at the time of marriage, those who are present, but who are ignorant of the previous circumstances, will not share in the guilt of the abduction. Cro. Car. 489. 493. As to accessaries after the fact, see 1 East, P. C. 453. 3 Chit. Crim. L. 818.

(8) It seems to be well agreed, and indeed to be beyond all doubt, that where a woman is taken away and married by force, she is a competent witness against her husband, on an indictment for that offence. See Phil. Ev 3d ed. 70, and the authorities there cited. But the proposition that, where she consents to the marriage, after a forcible abduction, her evi dence is equally admissible, seems to admit of some doubt. In the last case of this kind, Wakefield's, both the abduction and the mar riage were in fact voluntary, the lady's consent to both having been obtained by fraud; but it was held that the fraud in law amounted to force, and the lady was, upon that ground it is conceived, admitted as a witness against

An inferior degree of the same kind of offence, but not attended with force, is punished by the statutes 4 & 5 Ph. & Mar. c. 8. which enacts that if any person, above the age of fourteen, unlawfully s shall convey 01 take away any woman child unmarried (which is held (r) to extend to bas tards 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 two years, or fined at the discretion of the justices; and if he deflowers 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 (9). So that as these stolen marriages, under the age of sixteen, were usually upon mercenary views, this act, besides punishing the seducer, wisely removed the temptation. But this latter part of the act is now rendered *almost useless, by provisions of a very different kind, which make [210] the marriage totally void (s), in the statute 26 Geo. II. c. 33. (10).

III. A third offence, against the female part also of his majesty's subjects, but attended with greater aggravation than that of forcible marriage, is the crime of rape, raptus mulierum, or the carnal knowledge of a woman forcibly and against her will. This, by the Jewish law (t), was punished with death, in case the damsel v was betrothed to another man; and in case she was not betrothed, then a heavy fine of fifty shekels was to be paid to the damsel's father, and she was to be the wife of the ravisher all the days of his life without that power of divorce, which was in general permitted by the Mosaic law.

The civil law (u) punishes the crime of ravishment with death and con

r) Stra. 1162.

(a) See Book 1. page 437, &c.

the husband. A doubt afterwards arose whether the marriage in that case was valid or not, which led to the bringing in a bill to annul it; though the prevailing opinion among the profession seemed to be, that the marriage was ipso facto void, as a marriage procured by force in which view of the case, the admission of the wife's evidence would not be an authority upon the question one way or the other. One account of that trial states, that Hullock, B., declared, that even assuming the marriage to be valid, he would admit the wife's evidence, for there were cases in which the evidence of wives was admissible against their husbands, and he considered that to be one of them. And upon the principle that a woman may give evidence against her husband in the case of a personal wrong done to herself, it does seem that the wife would be a competent witness in a prosecution for abduction, even though the marriage was valid.

(9) This Act of 4 and 5 P. and M. c. 8, is wholly repealed by the 9 Geo. IV. c. 31 ; section 20 of which enacts, that if any person shall unlawfully take, or cause to be taken,, any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to suffer such punish

(1) Deut. xxii. 25.
(u) Cod. 9, tit. 13.

ment, by fine or imprisonment, or by both, as the court shall award. This clause was framed for the purpose of meeting such a case as that of Wakefield.

(10) Such a marriage, if voluntary on the part of the female, that is, not procured by force or fraud, would not now be void; it hav ing been held, after much doubt entertained upon the point among the profession, (see Doe v. Price, 1 M. and R. 683,) that the 4 Geo. IV. c. 76, legalizes marriages which would otherwise have been void under the 26 Geo. II. c. 33, on account of the minority of the parties and the nonconsent of parents. See Rex v. Birmingham, 2 M. and R., 8 B. and C. 29, and the judgment of Lord Tenterden therein. The new Act, however, provides, section 23, that if any valid marriage solemnized by licence shall be procured by a party to such marriage to be solemnized between persons, one or both of whom shall be under age, by means of false swearing to any mat ter to which such party is required personally to depose, all the property accruing from the marriage shall be forfeited, and shall be secur ed for the benefit of the innocent party, or the issue of the marriage. The latter words clearly shew the intention of the legislature not to render the marriage void; for the words, "is sue of the marriage," in an Act of Parliament must mean lawful issue, which they could not be, if the marriage was void.

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