Part 4 (1/2)

Having thus briefly discussed what has occurred relative to the punishment of offences against life, we come next to make some observations on what we have denominated _Private Felonies against the Body of the Subject_.

By the Grecian, Roman, and Jewish Laws, the abominable crime of _Sodomy_ was punished with death.--In France, under the Monarchy, the offenders suffered death by burning.

The Lombards were said to have brought this detestable vice into England, in the reign of Edward the Third.--In ancient times the men were hanged, and the women drowned: At length by the Act 25th of Henry the Eighth, cap. 6, it was made Felony without Benefit of Clergy.--

It has been doubted, however, whether the severity of the punishment of a crime so unnatural, as even to appear incredible, does not defeat the object of destroying it, by rendering it difficult to convict an offender.

The same objection has been made with respect to the crime of committing _a Rape_. A proper tenderness for life makes the Law require a strong evidence, and of course the proof is nice and difficult; whereas, were the punishment more mild, it might be more efficacious in preventing the violation of chast.i.ty.

By the Law of Egypt, Rapes were punished by cutting off the offending parts;--The Athenian Laws compelled the ravisher of a virgin to marry her. It was long before this offence was punished capitally by the Roman Law: but at length the _Lex Julia_ inflicted the pains of death on the Ravisher.--The Jewish Law also punished this crime with death; but if a virgin was deflowered without force, the offender was obliged to pay a fine, and marry the woman.

By the 18th of Elizabeth, cap. 7, this offence was made Felony without Benefit of Clergy.

It is certainly of a very heinous nature, and, if tolerated, would be subversive of all order and morality; yet it may still be questioned, how far it is either useful or politic to punish it with death; and is worth considering, whether, well knowing that it originates in the irregular and inordinate gratification of unruly appet.i.te, the injury to Society may not be repaired without destroying the offender.

In most cases, this injury might be repaired by compelling (where it could be done with propriety,) the criminal to marry the injured party; and it would be well for Society, if the same rule extended not only to all forcible violations of chast.i.ty, but even to instances of premeditated and systematic Seduction.

In cases, however, where marriage could not take place, on account of legal disability, or refusal on the part of the woman, the criminal ought to be severely punished, by pecuniary damages to the party injured, and by hard labour and confinement, or transportation for life.

The offence considered as next in point of enormity to Rape, is _Forcible Marriage_, or _Defilement of Women_: but it is somewhat remarkable, that by confining the punishment to offences against women of estate only, the moral principles are made to yield to political considerations; and the security of property in this instance, is deemed more essential, than the preservation of female chast.i.ty.

In short, the property of the woman is the measure of the crime; the statutes of the 3d of Henry the Seventh, cap. 2. and the 39th of Elizabeth, cap. 9, making it Felony without Benefit of Clergy, to take away, _for lucre_, any woman having lands or goods, or being an heir apparent to an estate, by force, or against her will, and to marry or to defile her. The forcible marriage and defilement of a woman without an estate is not punished at all; although, according to every principle of morality and reason, it is as criminal as the other. It is indeed an offence not so likely to be committed.

However, it seems in every point of view, impolitic to punish such offences with death; it might be enough, to expiate the crime by alienating the estate from the husband--vesting it in the wife alone, and confining him to hard labour; or by punis.h.i.+ng the delinquent, in very atrocious cases, by transportation.

Polygamy stands next as an offence against the person:--It was first declared Felony by the statute of James the first, cap. 11, but not excluded from the Benefit of Clergy, and therefore not subject to the punishment of death.

Though, in one view, the having a plurality of wives or husbands, appears only a political offence, yet it is undeniably a breach of religious and moral virtue, in a very high degree.--It is true, indeed, that in the early ages of the world, Polygamy was tolerated both in Greece and Rome, even after the People had arrived at a high pitch of refinement.--But since the inst.i.tution of Matrimony under the present form, Polygamy must be considered as highly criminal, since marriage is an engagement which cannot be violated without the greatest injury to Society. The Public Interest, therefore, requires that it should be punished; and the Act 35th George III. cap. 67, which punishes this offence with transportation, is certainly not too severe.

Mayhem, or Maiming, is the last in the Catalogue of _Offences against the Person_. It was first made Single Felony by the 5th of Henry the Fourth, cap. 5.--It is defined to be _maiming, cutting the tongue, or putting out the eyes of any of the King's liege people_. The statute of the 22d and 23d of Charles the Second, cap. 1. extends the description of this offence to slitting the nose, cutting off a nose or lip, or cutting off or disabling any limb or member, by malice forethought, and by lying in wait with an intention to maim and disfigure:--And this statute made the offence Felony, without Benefit of Clergy.

To prove malice in this crime, it is sufficient that the act was voluntary, and of set purpose, though done on a sudden.

Mayhem, as explained in the above statutes, is certainly a very atrocious offence; and as the punishment is not followed by corruption of blood, or the forfeiture of the property of the offender, it is, according to the present system, perhaps not too severe.

One particular sort of Mayhem by cutting off the _ear_, is punishable by an Act 37 Hen. VIII. cap. 6. which directs that the offender shall forfeit treble damages to the party grieved, to be recovered by action of trespa.s.s; and .10 by way of fine to the King.

We next come to examine _Private Felonies_ against the _Goods or Property of the Individual_, viz. _Simple Larceny_, _Mixt Larceny_, and _Piracy_.

Simple Larceny is divided into two sorts;--1st, Grand Larceny, and 2d, Pet.i.t Larceny.--The first is defined to be _the felonious taking and carrying away the mere personal property or goods of another, above the value of twelve pence_.--This offence is capital, and punished with death, and the forfeiture of property.

Pet.i.t Larceny is where the goods, taken in the above manner, are under the value of twelve pence; in which case, the punishment (according to the circ.u.mstances of atrocity attending the offence,) is imprisonment, whipping, or transportation, with forfeiture of goods and chattels.

Thus it appears, that by the rigour of the Law, stealing the least trifle above 12_d._ subjects the offender to the loss of life; a punishment apparently repugnant to reason, policy, or justice: more especially when it is considered, that at the time this _Anglo Saxon Law_ was made, in the reign of _Athelstan_, 860 years ago, _one s.h.i.+lling_ was of more value, according to the price of labour, than _seventy-five s.h.i.+llings_ are at the present period: the life of man therefore may be justly said to be seventy-five times cheaper than it was when this mode of punishment was first established.

By the Athenian Laws, the crime of Theft was punished, by paying double the value of what was stolen, to the party robbed; and as much more to the public.--Solon introduced a law, enjoining every person to state in writing, by what means he gained his livelihood; and if false information was given, or he gained his living in an unlawful way, he was punished with death.--A similar law prevailed among the Egyptians.

The _Lex Julia_ of the Romans made Theft punishable at discretion; and it was forbidden, that any person should suffer death, or even the loss of a member, for this crime.--The greatest punishment which appears to have been inflicted for this offence, in its most aggravated circ.u.mstances, was four-fold rest.i.tution.

By the Jewish Law, Theft was punished in the same manner: with the addition of a fine according to the nature of the offence; excepting in cases where _men_ were stolen, which was punished with death.

In China, Theft is punished by the bastinadoe, excepting in cases of a very atrocious nature, and then the culprit is condemned to the knoutage--a contrivance not unlike the pillory in this country.