rit(o) qui hominem non occidit sed vulneravit ut occidat, ut homicida damnandus, nam si gladium strinxerit & cum eo percusserit, indubitatê occidendi animo admissit, sed si clavi aut cuccuma in rixa, quamvis ferro, percusserit, tamen non occidendi animo lenienda pæna ejus, qui in rixa casu magis, quam voluntate, homicidium admisit.(p)

But if it were merely by misfortune, it was not punished.(g)

Qui stuprum sibi vel suis per vim inferentem occidit, dimittendus est,(r) sed is, qui uxorem in adulterio deprehensam occidit, humiliore loco positus in exilium perpetuum dandus, in aliqua dignitate positus ad tempus relegandus. (s)

Furem nocturnum qui occiderit, impune feret, si parcere ei sine periculo suo non potuit;() which law, though like to that of the Jews and Greeks, the Roman lawyers have construed,(u)

that it is lawful to kill furem nocturnum recedentem & [ 7 ] fugientem cum rebus, licet se non defendat telo, sed non diurnum, nisi se defendat telo.

The punishment of homicide, unless it were merely casual, among the Romans was deportatio in insulas & omnium bonorum ademptio, sed solent hodie capite puniri, nisi honestiore loco positi fuerint, ut pœnam legis sustineant; humiliores enim solent bestiis subjici;(x) altiores vero deportantur in insulas.(y)

Some temperaments they added in other cases of homicide, as banishment for five years,(z) deportation, &c. but regularly the punishment of homicide, unless in case of simple misfortune,(a) or defence of life, (b) was death, viz. bestiis subjiciantur.

Among the Saxons (c) the punishment of homicide was not always,

(0) 1. 1. pr. & Cod. eod. tit. Lib. IX. tit. 16. l. 7.

(p) l. 1. §. 3.

(q) l. 1. §. 3. c. g. If a man, who was cutting a tree, should without calling out throw down a great branch of it upon one who was passing by, and kill him, he was to be acquitted, that is to say, he was not to be proceeded against criminally by the lex Cor. nelia de sicariis; for so is the expression in l. 7, ad hujus legis coercitionem non pertinet; but still he was liable by the lex Aquilia to make a pecuniary satisfaction for the dam. age. Instit. Lib. IV. tit. 3. §. 5. And though that law mentions only the case of killing a slave, yet there lay an utilis actio in the case of killing a freeman. See Noodt ad Leg. Aquil. cap. 2.

(r) l. 1. §. 4.

(8) l. 1. §. 5.

(t) l. 9.

(u) This was not a mere construction of the Roman lawyers, but is expressly provided by the law of the twelve tables, as appears from Digest. Lib. IX. tit. 6. ad leg. Aquil. l. 4. §. 1. Cic. pro Milone, cap. 3. A. Gell. Lib. 18. cap. Macrob. saturnal. Lib. 1. cap. 4. The reason of this distinction between a night-thief and a day-thief, see in Grot. de jur. bel. ac. pac. Lib. II. cap. 1. §. 12.

(x) Dig. Lib. XLVIII. tit. 19. de pænis. l. 28. § 15.

(y) Dig. ad leg. Cornel. de sicariis l. 16.

(a) Cod. eod. tit. l. 1.

(b) Cod. eod. tit. l. 2. & 3.

(z) L. 4. § 1.

(c) It seems to have been the general practice of most of the northern nations to commute the punishment of the most heinous crimes for a pecuniary mulet. Lindenbrogii Codex Leg. Antiq. Lib. IV. cap. 36. Tacitus speaking of the ancient Germans, says, it was customary among them to punish homicide with a certain number of sheep and oxen, out of which the relations of him that was slain received satisfaction. Tac. de mor. Germ. cap. 21. From hence probably our Saxon ancestors brought the custom into Britain.

nor for the most part capital; for it might be redeemed by a recompense which went under the name of Wera and Were[8] gild,(d) which was a rate set down upon the head of persons of several ranks; and if any of them were killed, the offender was to make good that rate, or Weregild or capitis æstimatio, to the kindred of the party slain; or, as some think, part to the king, part to the lord of the fee and part to the relations of the party slain; which if he could not do, he was to suffer death.(e) Vide Spelm. in Gloss. ad verba Wera & Weregild.

This custom continued long, even to the time of Hen. I. here in England, as appears by his laws in libro rubro, sect. 11.(f) but shortly after grew obsolete, as being too much contradictory to the divine law.(g) Vide Covarr. Tomo 2 Lib. 11. cap. 9. secl. 2.

(d) This Weregild or capitis æstimatio, according to the laws of Ethelbert, was usually 100s. Leg. Ethelbert, l. 21. though in some particular cases it was more, l. 5. 6. 22. If the slayer escaped, the relations were to pay half the ordinary Weregild, l. 23.

By the laws of Ina the Weregild was different according to the rank and degree of the person killed, of a man worth 2008. was 30s. of a man worth 600s. was 80s. of a man worth 1200s. was 120s. Leg. Inæ. l. 70. This rule admitted of some exceptions, l. 34. l. 74.

By the laws of Alfred, the bare attempt on the king's life was punished with death, unless the offender redeemed it by the payment of the king's weregild: the same law was in case a slave attempted the life of his lord, unless he redeemed it by paying his lord's weregild. Leg. Alfred. 1. 4. the weregilds were of the same value, as under Ina. Leg. Alfred. l. 9. 1. 26.

By the league between Alfred and Guthrun, l. 2. the value of a common person was 200s. the same by the league between Edward and Guthrun in fine.

By the laws of Athelstan, whoever should attempt his lord's life, was to be put to death, and there is no mention made of any ransom. Leg. Athelstan, l. 4. but at the end of his laws, and of the Judicia Civitatis Lundoniæ, there is a particular account of the weregilds of all orders and degrees, from the king to the peasant, for which sce Wilkin's Leg. Anglo-Sax. p. 64. p. 71. Turner's Anglo-Saxons.

By the laws of Ethelred, l. 5. the weregild of a common person was increased to 25 pounds. By 1. 8. Gul. Conq. apud Wilkins's, p 221. it was twenty pounds.

By the laws of Cnute, whoever should lie in wait for the life of the king, or of his lord, was to suffer death, and forfeit all he had. Leges Cnuti, l. 54. Whoever committed a public notorious murder, was likewise to suffer death, without redemption: for in l. 61. Cades publica & domini proditio are reckoned amongst the scelera inexpiabilia; but it should seem that common homicide was redeemable; for in l. 6. it is said, Homicide inclinent, vel emendent, vel scienter in peccatis moriantur.

(e) The weregild was usually divided into three parts: the first, which was called Frith Bote, was paid to the king for the loss of his subject; the lord had another for the loss of his man, which was called Man-bote, and the kin of the slain for their loss had the third part, which was called Mag-bote. See Spelm. life of Alfred, Book II. § 11. In the case of killing the king, besides the weregild, which was to be paid to the king's relations, there was also another payment called cynebot or cynegild, to be made to the public for the loss of their king.

(f) And § 12. see Wilkin's leges Anglo Sax. p. 244. But it appears from the same laws, l. 71. ibid. p. 267. that a malicious murder, by poison or the like, was factum mortiferum nullo modo redimendum. The genuineness of these laws is justly questioned, for that they not only are in the nature of commentaries rather than laws; but also in 1. 5. Gregory's decretals are cited, which were not compiled till fifteen years after the death of Henry I, however, they are allowed to be very ancient, and to contain the usages of the Anglo-Saxons. See Hickesii Dissert. Epist. p. 96.

(g) It cannot but seem strange to us at this time of day, that the wilful murder of any one, much more of the king, should be punished only with a pecuniary mulct; to solve this difficulty, Mr. Rapin supposes that this commutation was allowed only in the case of simple homicide; or at most what is now known by the name of manslaughter,

But although the custom of Weregild is abrogated here in England, and by the laws of this kingdom the punishment of homicide is regularly death, (h) as shall hereafter be shown; [ 9 ] yet since there are in England two kinds of proceedings in punishing of homicide, the one at the suit of the heir or wife by appeal,[1] the other at the suit of the king by indictment, the capi

but not in the case of a premeditated murder: See Rapin's Histoire d'Angleterre, Vol. I. p. 520. This notion is in itself reasonable, and seems to be favoured by l. 4. of Athelstan, and l. 54. of Cnute, which makes it capital barely insidiari regi vel domino, much more to take away the life of the king or his lord; but on the other hand it seems somewhat hard to suppose, that among so many laws against homicide, they should all be levelled against casual or sudden killing only, and scarce any against wilful murder.

(h) The offender is to be hanged by the neck till he be dead; and in case he was convicted on an appeal, the ancient usage was, that all the relations of the slain should drag him with a long rope to the place of execution. 3 Co. Inst. 131. Plowd. 306, b. 11 Hen. 4. 12. a.

[1] Many cases of appeal are to be found in the old books, but by the 59 Geo. 3, c. 46, it is enacted, that it shall thenceforth not be lawful for any person to sue an appeal for treason, murder, felony, or other offence; any law or usage to the contrary, notwithstanding. 4 Step. Comm. 385.

In 1818, 58 Geo. 3, the case of Ashford v. Thornton, 1 B. & Al. 405, was argued and determined in the King's Bench. The writ of Appeal, and the return thereto, were annexed to the sheriff's return of the writ of Habeas Corpus, and will be found printed on p. 406. The count in appeal will also be found on p. 407. Some curious proceedings are recorded; thus, "The appellee being brought into court and placed at the bar, and the appellant being also in court, the count was read over to him, and he was called upon to plead. He pleaded as follows: Not guilty; and I am ready to defend the same by my body.' And thereupon taking his glove off, he threw it upon the floor of the Court." The pleadings are fully stated in the Report, in which all the facts and circumstances are narrated and set forth, until the parties reach a general demurrer. This demurrer was argued by the most distinguished special pleaders of the time. Chitty supported the demurrer, in an elaborate and exhausting argument; and Tyndal, (then Special Pleader under the Bar, afterwards Lord Chief Justice of the Common Pleas,) opposed him in an argument equally elaborate and learned. Lord Ellenborough, C. J., delivering the opinion of the Court, said, "The general law of the land is in favour of the wager of battel, and it is our duty to pronounce the law as it is, and not as we may wish it to be. Whatever prejudices, therefore, may justly exist against this mode of trial, still, as it is the law of the land, the court must pronounce judgment for it."

Sir Samuel Shepherd, the Attorney General, immediately introduced a Bill in Parlia ment, to abolish appeals of murder and wager of battel, which may be found in the 25 Vol. Statutes at Large, 59 Geo. 3. c. 46. 22d June, 1819.

It may be mentioned in connexion with this case of Thornton's Appeal, that it was the first occasion on which the late Chief Justice, Sir Nicholas Tyndal, of the Court of Common Pleas, greatly distinguished himself. His very learned argument gave rise to the Act mentioned above for abolishing that barbarous and absurd mode of trial. Lond. Law Review for Aug. 1846, p. 436. MS. Sum., Tit. Appeal of Death.*

* This reference is to a MS. interleaved copy of Hale's Summary, from the library of the late SIR WILLIAM ALEXANDER, Chief Baron of the Exchequer, furnished to the editors by HENRY J. WILLIAMS, Esq., of Philadelphia. Mr. EAST, in the Introduction to the first edition of his Pleas of the Crown, mentions his reference to this work among other authorities of like character-"Lord Hale's Summary, interleaved with MS. corrections and additions. This MS. compilation, though began before, (probably by Mr. Stow, a gentleman of the bar,) was put into its present form by Mr. Justice Yates, whose son is now in possession of it. Copies of it were communicated to different judges, who have contributed, from time to time, the fruits of their own experience. My own copy was taken from one in the possession of the late Mr. Justice Buller. The work was bound up in three volumes, according to which I have cited it by the description 1, 2 & 3 MS. Sum." 1 East P. C. Introduction, p. 15, London ed. 1803.

tal punishment of the offender may be discharged by all parties interested, namely by the appellant by release, and by the king by his pardon.

And thus far touching the punishment of homicide.

Now I shall consider somewhat also of the punishment of theft, and the various laws and usages concerning the same in several kingdoms and states, and at different times in the same state or kingdom.

By the Jewish law, Exod. xxii. 1, 4. "If a man steal an ox or a sheep, and sell or kill it, he shall restore five oxen for an ox, and four sheep for a sheep: If the theft be found in his hands alive, whether ox, ass, or sheep, he shall restore double;" and the like for other goods; (i) so that there was no capital punishment in case of theft, though it were accompanied with burglary, as breaking a house, but men-stealers were punished with death;(k) but it seems by the civil constitutions of that state the punishment thereof was sometimes enhanced, at least in some circumstances, sometimes to a seven-fold restitution, Prov. vi. 31, and also to death, 2 Sam. xii. 5.(1)

Now as to the Attic laws: Samuel Petit de Legibus Atticis, Lib. VII. tit. 5. gives us an account of their laws concerning theft, in

some things differing, in some things agreeing with the Jewish [10] laws, furem cujuscunque modi furti supplicio capitis punito. This was Draco's law; but it was thought too severe, and therefore Solon corrected it;(m) Si furtum factum sit, & quod furto perierat receperit dominus, duplione luito furtum qui fecit & quorum ope consiiloque fecit; decuplione vindicator, ni dominus rem furtivam receperit, in nervo quoque habetor dies ipsos quinque totidemque noctes, si heliastæ pronunciârint; pronuncianto autem, cum de pœna illius agitur.

Si lucri furtum cujus æstimatio sit supra 50 drachmas faxit, ad undecim viros rapitor; si nox furtum faxit, si im aliquis occisit, jure cæsus esto:-Manifestum hujusmodi furtum qui faxit, etiamsi vades dederit, non noxæ factæ sarcitione, sed morte luito. Si quis item ex aliquo gymnasio vestis aut lecythi aut alicujus vel minimæ rei, aut supellectilis è gymnasio, aut ex balineo, aut è portubus, quod excedat 10 drachmarum æstimationem, furtum faxit, morte luito.

Manifesti saccularii(n) morte luunto.
Vecticularii(o) manifesti morte luunto.

(i) Exod. xxii. 7, 9. The reason why the restitution of an ox was more than of a sheep is supposed by Maimonides more Nevochim Par. III. cap. 41, to be because sheep are more easily guarded against thieves than oxen, who feed at a greater distance one from another.

(k) Exod. xxi. 16.

(1) This passage from the book of Samuel does by no means prove what it is brought for, viz. that theft was punishable with death by the Jewish law; for the case there put of taking away a poor man's lamb, was attended with violence and other aggravating circumstances, which provoked king David to say, The man that hath done this shall surely die; and some render the words, Does deserve to die; but at most it only proves the vehemence of David's anger at the man, and not what was the law of the Israelites, (m) See A. Gellium, Lib. XI. cap. 18. & Plutarch. in Vita Solonis.

(η) Βαλαντιοτομίων, A cut-purse.

(0) Toixuguxor, A house-breaker.

Plagiarii(p) manifesti morte luunto.

In hortos irrumpere ficosque deligere capital esto ;(q) So that the quantity of the thing stolen, the place, the season, the manner and other circumstances heightened theft into a capital punishment, that otherwise by Solon's laws was only pecuniary and imprisonment.(r)

Now as to the Roman laws: For a theft that was not furtum manifestum, there is given actio in duplum; but if [11 it were furtum manifestum, actio in quadruplum;(s) furtum autem manifestum est, cum fur deprehenditur in furto.(t)

But now as to punishments among the Romans, there were these degrees or orders: I. Capital punishments, (viz. ultimum supplicium)(u) which were, 1. Damnatio ad furcam. 2. Vivi crematio. 3. Capitis amputatio. 4. Damnatio ad feras. II. Others, that were in the next degree, were, 1. Coercitio ad metalla. 2. Deportalio ad insulas. III. Others again of a lower allay were, 1. Relegatio ad tempus vel in perpetuum. 2. Datio in publicum opus. 3. Fustigatio.(x)

I find not among the Romans any greater punishment of theft, than four-fold restitution (y) unless in these cases:

1. Si quis ex metallo principis vel ex monetâ sacrâ furatus est, pœna metalli & exilii punitor.(z)

(p) 'Ardgamedioqueros, Sive Plagiarius, is est, qui sine vi, dolo malo sciens abducit homines liberos & ingenuos, venditque pro servis, aut suppremit: vel is est, qui alienos servos abducit sine vi, & plerumque sine furto, & fugam persuadet, aut fugitivos celat. Petit. Comment. ad Lib. VII. tit. 5, de furtis.

(q) But this was a temporary law, made in a time of dearth, when it was thought necessary to prohibit the exportation of figs. However, prosecutions of offenders against this law soon grew odious: from hence all malicious informers were called Sycophants. Vide. Athenai Deipnosophist. Lib. III. & Scholiast. in Aristophanis Plutum ad v. 31. & 874.

(r) Among the Lacedæmonians all manner of theft was permitted, as a practice which tended to instruct their youth in the stratagems of war. A. Gel. Lib. XI. cap. 18. It was also unpunished among the ancient Egyptians. A. Gel. ubi supra. But we learn from Diodor. Sic. Lib. I. that it was allowed only on certain conditions, for it was provided by a law, that whoever was minded to follow the trade of thieving, should first enter his name with the captain of the gang, and should bring in all his booty to him, that so the right owner might know where to apply for the recovery of his goods, which were restored to him on paying the quarter of the value.

(s) Inst. Lib. IV. tit. 6. §. 5. Diges. Lib. XLVII. tit. 2. de furtis, l. 46. §. 2. Herein the Roman law greatly resembled the Jewish, with this difference that by the Jewish law the punishment of fourfold was to be instead of restitution; whereas by the Roman law the thing stolen was recoverable over and above the pœna quadrupli. Dig. eod. tit. l. 54. §. 3.

(1) Dig. eod. tit. l. 2. l. 3. pr. By this was meant not only if he was taken in the fact, but also if he was apprehended with the goods upon him before he had carried them to the place, where they were to remain that night, and answers to the expression in our law, of being taken in the muinouvre.

(u) Dig. Lib. XLVIII. tit. 19. de pænis. l. 21.

(x) Dig. eod. tit. l. 28. pr. §. 1. l. Î1. §. 3.

(y) So far were the Romans from inflicting capital punishments for theft, that on the contrary it was expressly forbidden by Justinian, that any person should be put to death, or suffer the loss of member for theft. Novel CXXXIV. cap. ult.

(z) Dig. Lib. XLVIII. tit. 13. ad leg. Jul. peculatus, l. 6. §. 2. Lib. XLVIII. tit. 19. de pænis l. 38.

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