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 ; becauſe they do not weaken but only disfigure him.
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[1]: which is ſtill the law in Sweden[2]. But this went afterwards out of uſe: partly becauſe the law of retaliation, as was formerly ſhewn[3], 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[4]; 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[5].” And this, although the mayhem was committed upon the higheſt provocation[6].
But ſubſequent ſtatutes have put the crime and puniſhment of mayhem more out of doubt. For, firſt, by ſtatute 5 Hen. 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[7] explains it, voluntarily
- ↑ 3 Inſt. 118.—Mes, fi la pleynte ſoit faite de femme qu' acera tollet a home ſes membres, en tiel caſe perdra la feme la une meyn par jugement, come le membre dount ele avera treſpaſſe. (Brit. c. 25.)
- ↑ Stiernhook de jure Sueon. l. 3. c. 3.
- ↑ See pag. 12.
- ↑ 1 Hawk. P. C. 112.
- ↑ Bract. fol. 144.
- ↑ Sir Edward Coke (3 Inſt. 62.) has tranſcribed a record of Henry the third's time, (Clauſ. 13 Hen. III. 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 wife.
- ↑ 3 Inſt. 62.
