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kingdom_n	england_n	hand_n	king_n	2,695	5	3.6715	3	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A59283	A treatise of mutilation and demembration divided into two parts : in the first whereof, the name and nature of these crimes ... : in the second part, the punishments of these crimes ... : and in both parts the civil law, and the law and customes of this and other nations are compared / by Sir Alexander Seaton ... ; by way of appendix to the fore-going book, written by ... George Mackenzie ...	Seton, Alexander, Sir, 1639?-1719.	1699 (1699)	Wing S2649; ESTC R6252	93,137	78

more agreeable But withal it deserves our Observation that this punishment was to be inflicted with much tenderness and previous Consideration and never to have place against both hands dict Auth. nor against the useful hand if the Delinquent had a withered Hand Novel 134. cap. 13. Cabal Cent. 3. resol cas 136. N 52. seqq The Reason which moved Justinian to this tenderness may be taken from the Novel 134. cap. quia vero to be this That a Man mutilated of both hands could not serve himself to the necessities of Life and therefore Amputation of both hands was never to be inflicted but when Death was conjoyned as the Merit of the Crime The like Punishment is among the later Laws of Saxony and other Nations Carpz prax crim p. 1. qu. 40. N. 40. seqq p. 3. qu. 229. N. 24. but it is always conjoyned says he with Relegation to prevent Quarrels and other Inconveniencies which might follow upon Peoples shunning the Converse of the Delinquent as bearing a publick Mark of Infamy on his Body dict qu. 40.45 dict qu. 129. N. 34. It 's frequently used in Aggravation and Augmentation of the punishment of Death as he relates dict qu. 128. N. 55. seq But to leave this uncontroverted Point and to come to the present Question viz. If Amputation of the hand be a punishment appointed for Mutilation and Demembration we have an Argument for the Affirmative in Gloss ad lib. 2. feud tit 53. de pace tenenda § homicidium There it s said by the Emperour Frederick the first of that Name according to Eguin Baro Homicidium quoque Membrorum deminutio vel aliud quodlibet delictum legaliter vindicetur Upon which words Membrorum deminutio the Gloss in marg states a Question Membri amputatio qua poena puniatur And answers forte manus delinquentis amputabitur cum pro solo vulnere manus ei amputaretur si pacem violaverit and cites for this § 3. of another Constitution of the same Emperour de pace tenenda tit 47. dict lib. feud The words whereof are Si quis alium intra pacis edictum vulneraverit nisi quod in duello vitam suam defendendo hoc fecerit probaverit manus ei amputaretur The Argument of the Gloss may be form'd in this manner If Amputation of the hand be inflicted for single Vulneration then much more for Demembration but the first holds good and therefore the second The Consequence of the Proposition may be inforced from the Opinion of Suarez de censuris disp 44. sect 2. N. 4. where he lays down for a Rule That a Law though containing rigour may be extended from Mutilation to Homicide not by reason of Similitude in the cases or by an Argument drawn from the lesser Crime to the greater but by an Argument drawn from a part to the whole including that part and subsumes that Homicide includes Mutilation as a part of it formaliter vel eminenter and just so Demembration or Mutilation includes wounding and therefore the punishment of single wounding may by consequence be extended to be the punishment of Mutilation or Demembration But the Argument as it s form'd will only conclude in the case where simple wounding is punishable poenâ amputationis manus by Fredericks Constitution and that is only when the wounding is accompanied cum violatione pacis publicae to which Gail treating of this and other Constitutions of that nature lib. 1. de pace publica cap. 7. Carpz dict qu. 40. N. 1.2 3 4. following him require three Conditions viz. 1. That there be publick Force and greater than one can resist 2. That the wounding be with Arms by which Gail dict cap. N. 3. understands every hurtful Weapon or Instrument as Sword Spear Batton or Stones 3. That there be dolus verus and a formed and deliberated Design to hurt And t' will be easily granted that simple wounding in these Circumstances may be punished with amputation of the Hand which holds in other Circumstantiated Cases ex gr ratione loci with respect to the place where it 's committed And this is clear from Carpz dict qu. 40. N. 30 31 34 35 36 and 37. where he shews that by the Laws and Practise of Saxony all manner of Hurting Wounding or Invading being committed in the Camp Castle or Palace of a Prince or upon a publick way by one lying in wait is punishable poenâ amputationis manus And Baker in his Chronicle of England ad annum 1541. shews the same to be the practise of that Kingdom where the Crime is committed within the Verge of the Kings Court. In like manner by the Laws of many Places of Italy a Wound given in the Face leaving a Cicatrice is punishable by loss of the Hand Cabal dict cas 134. N. 1. And N. 31. he relates a Decision to this purpose of the Magna Curia Vicaria against Dominicus Feretta who had wounded a young Boy in the Face But I remember no Law or Decision ordaining simple wounding to be punished with amputation of the Hand out of these circumstantiated Cases neither is there any thing like it to be found in the Law and Practice of this Kingdom nor in any other case in our Law except what I mentioned N. 9. supra where persons adjudged to Death for atrocious Crimes were sentenced to have a Hand cut off in aggravation of the Punishment as in several other Cases mentioned by Carpz dict p. 3. q. 128. N. 55. 56. 57. et seqq which was inflicted sometimes immediatly before Death or immediatly thereafter as the Crime deserv'd I find indeed several Acts of Parliament viz. Act 18. Parl. 1. Act 88. Parl. 6. Act 248. Parl. 15. Act 6. Parl. 16. Ja. 6. forbidding the using of certain offensive Weapons therein mentioned under the pain of cutting off the Right hand and the first of them proceeds upon a Narrative that many of the Subjects had been murdered and slain who if they had not been assaulted with such Weapons might have been able to have defended them selves but the last of these Acts contains a provision That if the Action be pursued before the Secret Council the Delinquent shall not incur the Corporal Punishment but shall be punished by Imprisonment Escheat of Goods or by Fyning without prejudice of the Execution of the former Acts against such as shall be pursued before the Kings Justices Which was inserted as a Cautela for preventing the inflicting of the corporal Punishment because it leaves it in the option of the King and his Council to pursue before themselves and accordingly all such Pursuits have been brought before them not before the Justices that so a pecunial Mulct might be inflicted instead of corporal punishment because the Council doth not inflict Poenam sanguinis that being proper to the King's Justices By which it's evident that Amputation of the hand has been inserted in these Acts ad terrorem only We have indeed an Ancient

see how necessar it is for them to study the Quaestiones medico-legales without which it is not possible for them to understand some Texts in Law l. 12. ff de Statu And many other Laws in the Titles ad leg Aquil. de Aedil edict But we need not give instances seing the large Volume of Paulus Zacchias frequently above cited contains hundreds of Instances And Matthaeus dict loc thinks it may be useful also for Judges to understand these things that they be not easily deceived by the Reports of corrupted Chyrurgions and in order to this he lays before them the 18 Aphoris of Hippoc de vulneribus lethalibus sect 6 and the words of Celsus lib 5 cap 26 as a particular case to be understood A TREATISE OF MUTILATION and DEMEMBRATION PART II. WHEREIN the Punishments of these Crimes are handled Retaliation which is the first of them distinguished and the Practice of that Species thereof called Pythagorical or Arithmerical refuted from the Opinion of Divines and Lawyers and even from the Opinion of the Rabbies The other Species called Aristotelical Analogical or Geometrical reconciled to natural Equity and to the Law of GOD. The Punishment of Amputation of a Hand though in many Cases practised yet rejected from being the ordinary Punishment of these Crimes Arbitrary Punishments asserted in place of both and a well regulated Arbitrary Power prov'd to be usefull and necessary to Judges for augmenting and diminishing Punishments in these and in other Crimes according to Circumstances attending the committing of them And the Civil Law and the Law and Customes of this and other Nations are compared By Sir ALEXANDER SETON of PITMEDDEN Knight Baronet c. By way of Appendix to the fore going Book writen by the Learned Sir GEORGE MACKENZIE of Rosehaugh ARRIUS MENANDER L. 5. ff de re Militari Non omnes Desertores similiter puniendi sunt sed habetur ordinis stipendiorum ratio gradus militiae vel loci muneris deserti ante actae vitae sed numerus si solus vel cum altero vel cum pluribus deseruit ali●dve quid crimen desertioni adjunxerit Item temporis quo in desertione fuerit eorum quae post gesta fuerint Sed si fuerit ultro reversus non cum necessitudine non erit ejusdem sortis EDINBVRGH Printed by the Heirs and Successors of Andrew Anderson Printer to the King 's most Excellent Majesty For Mr. Andrew Symson and are to be Sold by him in the Cowgate near the Foot of the Horse-wynd Anno DOM. 1699. PART II. Of the Punishments of MUTILATION DEMEMBRATION Summaries 99 The DD. insist chiefly on three Punishments Retaliation Amputation of a Hand and Arbitrary Punishment And the Law of this Kingdom Cap. 11. Stat. Rob. 2. declares the Life to be in the Kings Will and redeemable which may be reckoned as a fourth 100 Retaliation described and its various Names 101 The Subject is Juridico-theological equally handled by Divines and Lawyers 102 The Nature of Retaliation held forth in some Conclusions 103 Concl. 1. Retaliation instituted by God in his Law and delivered by Moses to the Jews 104 Concl. 2. The execution of the Law of Retaliation committed to the Magistrats and not left to privat Revenge 105 Concl. 3. The Law of Retaliation was transmitted from the Jews to the Grecions but how or in what time is uncertain some ascribing the Law to Rhadamanthus who was Moses in Mythologie according to Huetius others to Charondas King of the Locrians The words of their Laws set down 106 Concl. 4. That Retaliation is founded on natural Equity which consists in observing Equality between the Crime and Punishment proved by five Arguments 107 Arg. 1. Taken from the consent of Nations and Laws 108 Arg. 2. Taken from the Testimony of Fathers Modern Divines and Lawyers asserting its natural Equity 109 Arg. 3. Taken from various instances of providence inflicting Retaliation 110 Arg. 4. Taken from Gods threatning Retaliation against the Enemies of his Church in general and the Chaldeans in particular and also against his own people 111 Arg. 5. Taken from the threatnings of Retaliation under the Gospel which shews that the Law was not peculiar to the Jewish oeconomie 112. The Objections of Socinians and Anabaptists devised to overturn the power of Christian Magistrats answered and the Authority of the Christian Magistrat asserted 113. A farther proof by Instances of Providence under the Gospel that the Law of Retaliation was not abrogated under the Gospel with a Reflection against the Deists denying the Validity of humane Testimony 114 Concl. 5. Although Retaliation be founded on natural Equity and so is immutable yet it doth not follow that it must be always executed according to pythagorical or Arithmetical proportion but that Analogical or Geometrical proportion as Circumstances require is sufficient And this proved by several Arguments 115 Arg. 1. Taken from the Practice of the Jews in several particulars 116 1. In many cases it was either naturally or morally impossible to execut strict Retaliation 117. 2. It was lawful for the Jews to transact anent the punishment of Retaliation Josephus his Opinion disprov'd And the Practice of the Justice-Court anent Transactions justified 118 3. And for the same Reason the Jewish Magistrat was not obliged to enquire into these Crimes when the Parties did not desire it 119 4. If the Party injured did apply to the Magistrat and insisted to have the pain of strict Retaliation inflicted yet then in that case the Judge was not obliged to inflict punishment according to the words of the Law but he enquired into Circumstances and varied the punishment accordingly All this is prov'd by many instances particularly where the Qualitie of Parties was unequal 120 5. When Quality and Circumstances were equal which seems to be the only difficult Case even then the Jewish Magistrat did admit of a Ransome and pecuniary Mulct for punishment which was done on five accounts condescended on by the Rabbies The Law of Retaliation concluded to be minatory with a Rebuke to the Sadducees and their Successors 121 6. A false Witnes occasioning Death to another was punished with strict Retaliation but if by his Testimoney he occasioned only Demembration the difficulty is greater 122 Arg. 2. Taken from the Agreement of the Laws of the XII Tabb as paraphrased by Jacobus Gothofredus with the practice of the Jews and Doctrine of the Rabbies in several Instances 123 Inst 1. The Law of the XII Tabb allowed Transactions as well as the Jewish Practice 124 Inst 2. Depalmation by the Law of the XII Tabb was punished by a pecuniary Mulct and not by strict Retaliation And this was the Jewish Practice 125 Inst 3. The Law of the XII Tabb de osse fuso vel dentibus excussis appoints pecuniary Punishment and the same was augmented or diminished according to the Quality of the Delinquent which was also the Jewish practice 126 Inst 4. In the Agreement betwixt