* Quære, if these words may not be omitted? By the Common
law, one witness in treason was sufficient. Foster, 233.
Plowd. 8. a. Mirror, c. 3. § 34. Waterhouse on Fortesc de
Laud. 252. Carth. 144 per Holt. But Lord Coke, contra, 3
Inst 26. The stat. 1 E. 6. c 12. &5E.6. c. 11. first
required two witnesses in treason. The clause against high
treason supra, does the same as to high treason; but it
seems if 1st and 5th E. 6. are dropped, petty treason will
be tried and proved, as at Common law, by one witness. But
quære, Lord Coke being contra, whose opinion it is ever
dangerous to neglect.
** These words are intended to take away the peremptory
challenge of thirty-five jurors. The same words being used 1
& 2 Ph. k. M. c. 10. are deemed to have restored the
peremptory challenge in high treason; and consequently are
sufficient to take it away. Foster, 237.
*** Petty treason is considered in law only as an aggravated
murder. Foster, 107,323. A pardon of all murders, pardons
petty treason. 1 Hale P. C. 378. See 2 H. P. C. 340, 342. It
is also included in the word ‘felony,’ so that a pardon of
all felonies, pardons petty treason.
Whosoever shall be guilty of manslaughter,* shall, for the first offence, be condemned to hard labor** for seven years, in the public works, shall forfeit one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Commonwealth, allowing a reasonable part of the profits for the support of his family. The second offence shall be deemed murder.
* Manslaughter is punishable at law, by burning in the hand,
and forfeiture of chattels.
** It is best, in this act, to lay down principles only, in
order that it may not for ever be undergoing change: and, to
carry into effect the minuter parts of it; frame a bill ‘for
the employment and government of felons, or male-factors,
condemned to labor for the Commonwealth,’ which may serve as
an Appendix to this, and in which all the particulars
requisite may be directed: and as experience will, from time
to time, be pointing out amendments, these may be made
without touching this fundamental act. See More’s Utopia pa.
50, for some good hints. Fugitives might, in such a bill, be
obliged to work two days for every one they absent
themselves.
And where persons, meaning to commit a trespass* only, or larceny, or other unlawful deed, and doing an act from which involuntary homicide hath ensued, have heretofore been adjudged guilty of manslaughter, or of murder, by transferring such their unlawful intention to an act much more penal than they could have in probable contemplation; no such case shall hereafter be deemed manslaughter, unless manslaughter was intended, nor murder, unless murder was intended.
* The shooting at a wild fowl, and killing a man, is
homicide by misadventure. Shooting at a pullet, without any
design to take it away, is manslaughter; and with a design
to take it away, is murder. 6 Sta. tr. 222. To shoot at the
poultry of another, and thereby set fire to his house, is
arson, in the opinion of some. Dalt. c. 116 1 Hale’s P. C.
569, contra.
In other cases of homicide, the law will not add to the miseries of the party, by punishments or forfeitures.*
* Beccaria, § 32. Suicide. Homicides are, 1. Justifiable. 2.
Excusable. 3. Felonious. For the last, punishments have been
already provided. The first are held to be totally without
guilt, or rather commendable. The second are, in some cases,
not quite unblamable. These should subject the party to
marks of contrition; viz. the killing of a man in defence of
property; so also in defence of one’s person, which is a
species of excusable homicide; because, although cases may
happen where these also are commendable, yet most frequently
they are done on too slight appearance of danger; as in
return for a blow, kick, fillip, &c; or on a person’s
getting into a house, not anirno furandi, but perhaps
veneris causa, &c. Bracton says, ‘Si quis furem noctupnum
occiderit, ita demum impune foret, si parcere ei sine
periculo suo non potuit; si autem potuit, aliter erit.’
‘Item erit si quis hamsokne qua; dicitur invasio domus
contra pacem domini regis in domo sua se defenderit, et
invasor occisus fuerit; impersecutus et inultus ramanebit,
si ille quem invasit aliter se defendere non potuit; dicitur
enim quod non est dignus habere pacem qui non vult observare
earn.’ L.3. c.23. § 3. ‘Qui latronetn Occident, non tenetur,
nocturnum vel diurnnm, si aliter periculum evadere non
possit; tenetur ta-men, si possit. Item non tenetur si per
inforlunium, et non anitno et voluntate occidendi, nee
dolus, nec culpa ejus inveniatur.’ L.3. c.36. § 1. The stat.
24 H. 8. c. 5 is therefore merely declaratory of the Common
law. See on the general subject, Puffend. 2. 5. § 10, 11,
12, 16, 17. Excusable homicides are by misadventure, or in
self-defence. It is the opinion of some lawyers, that the
Common law punished these with death, and that the statute
of Marlbridge, c. 26. and Gloucester, c. 9. first took away
this by giving them title to a pardon, as matter of right,
and a writ of restitution of their goods. See 2 Inst, 148.
315; 3 Inst. 55. Bracton, L. 3. c. 4. § 2. Fleta L, 1. c.
23. § 14, 15; 21 E. 3. 23. But it is believed never to have
been capital. 1 H. P. C. 425; 1 Hawk. 75; Foster, 282; 4 Bl.
188. It seems doubtful also, whether at Common law, the
party forfeited all his chattels in this case, or only paid
a weregild. Foster, ubi supra, doubts, and thinks it of no
consequence, as the statute of Gloucester entitles the party
to Royal grace, which goes as well to forfeiture as life. To
me, there seems no reason for calling these excusable
homicides, and the killing a man in defence of property, a
justifiable homicide. The latter is less guiltless than
misadventure or self defence.
Suicide is by law punishable by forfeiture of chattels. This
bill exempts it from forfeiture. The suicide injures the
state less than he who leaves it with his effects. If the
latter then be not punished, the former should not. As to
the example, we need not fear its influence. Men are too
much attached to life, to exhibit frequent instances of
depriving themselves of it. At any rate, the quasi-
punishment of confiscation will not prevent it. For if one
be found who can calmly determine to renounce life, who is
so weary of his existence here, as rather to make experiment
of what is beyond the grave, can we suppose him, in such a
state of mind, susceptible of influence from the losses to
his family by confiscation? That men in general, too,
disapprove of this severity, is apparent from the constant
practice of juries finding the suicide in a state of
insanity; because they have no other way of saving the
forfeiture. Let it then be done away.
Whenever sentence of death shall have been pronounced against any person for treason or murder, execution shall be done on the next day but one after such sentence, unless it be Sunday, and then on the Monday following.*
* Beccaria, § 19; 25 G. 2. c. 37.
Whosoever shall be guilty of Rape,* Polygamy,** or Sodomy,*** with man or woman, shall be punished, if a man, by castration,**** if a woman, by cutting through the cartilage of her nose, a hole of one half inch in diameter at the least.