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.

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 anatomised; 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.

Petit treason, (which is an aggravated degree of murder) 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 ser

vant 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. 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. 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. 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.

CHAPTER XV.

OF OFFENCES AGAINST THE PERSONS OF
INDIVIDUALS.

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 felonious, and in their nature capital: others are simple misdemeanors, and punishable with a lighter animadversion. felonies the first is that of mayhem.

Of the

I. Mayhem is looked upon in a criminal light by the law, as being an atrocious breach of the king's peace, and an offence tending to deprive him of the aid and assistance of his subjects. By statute 22 and 23 Car. II. c. 1. 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 any other person, with an intent to maim or to disfigure him; such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy.

of

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 Elizabeth, c. 9. the benefit of clergy is taken away from all such felons, who shall be principals, procurers, or accessories before the

fact.

III. A third offence against the female part also of his majesty's subjects, but attended with greater aggravations than that of forcible marriage, is the crime of the carnal knowledge of a woman forcibly and against her will.

IV. The inferior offences or misdemeanors, that fall under this head, are assaults, batteries, wounding, false imprisonment, and kidnapping. With regard to the nature of these offences in general, I have nothing farther to add to what has already been observed in the preceding book of these Commentaries; when we considered them as private wrongs or civil injuries, for which a satisfaction or remedy is given to the party aggrieved. But, taken in a public light, as a breach of the king's peace, an affront to his government, and a damage done to his subjects, they are also indictable and punish

able by fines and imprisonment; or with other ignominious corporal penalties, where they are committed with any very atrocious design.

CHAPTER XVI.

OF OFFENCES AGAINST THE HABITATIONS OF

INDIVIDUALS.

THE only two offences, that more immediately affect the habitations of individuals or private subjects, are those of arson and burglary.

I. Arson, ab ardendo, is the malicious and wilful burning of the house or out-house of another

man.

Our English law also distinguishes with much accuracy upon this crime. And therefore we will inquire, first, what is such a house as may be the subject of this offence; next, wherein the offence itself consists, or what amounts to a burning of such house; and, lastly, how the offence is punished.

1. Not only the bare dwelling-house, but all out-houses that are parcel thereof, though not contiguous thereto, nor under the same roof, as barns and stables, may be the subject of arson. The offence of arson (strictly so called) may be committed by wilfully setting fire to one's own house, provided one's neighbour's house is thereby also burnt; but if no mischief is done but to one's