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 chastity.
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 appetite, 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 chastity, 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 chastity.
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 punishing 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 institution 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 trespass; and L.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,
Petit 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.
Petit 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 circumstances 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
shilling_ was of more value, according to the price of labour, than
_seventy-five shillings_ 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 circumstances, was four-fold restitution.
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.
The ancient Laws of this kingdom punished the crime of Theft
differently.--Our Saxon ancestors did not at first punish it
capitally.--The Laws of King Ina[12] inflicted the punishment of
death, but allowed the thief to redeem his life, _Capitis
estimatione_, which was sixty shillings; but in case of an old
offender, who had been often accused, the hand or foot was to be cut
off.
[Footnote 12: King of the West Saxons, anno 688.]
After various changes which took place under different Princes, in the
rude and early periods of our history, it was at length settled in the
9th of Henry the First, (A.D. 1108,) _that for theft and robbery,
offenders should be hanged_; this has continued to be the law of the
land ever since, excepting in the county palatine of Chester; where
the ancient custom of beheading felons was practised some time after
the Law of Henry the First; and the Justices of the Peace of that
county, received one shilling from the King, for every head that was
cut off.
Montesquieu seems to be of opinion that as thieves are generally
unable to make restitution, it may be just to make theft a capital
crime.--But would not the offence be atoned for in a more rational
manner, by compelling the delinquent to labour, first for the benefit
of the party aggrieved, till recompence is made, and then for the
State?[13]
[Footnote 13: That acute Reasoner, the Marquis BECCARIA, who wrote
after MONTESQUIEU, holds this last opinion.--"A punishment, (says this
able writer) to be just should have only that degree of severity which
is sufficient to deter others: perpetual labour will have this effect
more than the punishment of death."
BECC. chap. 28.]
According to the present system the offender loses his life, and they
whom he has injured lose their property; while the State also suffers
in being deprived of a member, whose labour, under proper controul,
might have been made useful and productive.
Observations have already been made on one consequence of the severity
of the punishment for this offence; that persons of tender feelings
conscientiously scruple to prosecute delinquents for inconsiderable
Thefts. From this circumstance it is believed, that not one
depredation in a hundred, of those actually committed, comes to the
knowledge of Magistrates.
Mixed or _compound Larceny_ has a greater degree of guilt in it than
simple Larceny; and may be committed either by taking from a man, or
from his house. If a person is previously put in fear or assaulted,
the crime is denominated _Robbery_.
When a Larceny is committed which does not put the party robbed in
fear; it is done privately and without his knowledge, by picking his
pocket, or cutting the purse, and stealing from thence above the value
of twelve pence; or publicly, with the knowledge of the party, by
stealing a hat or wig, and running away.
With respect to _Dwelling Houses_ the Common Law has been altered by
various acts of Parliament; the multiplicity of which is apt to create
confusion; but upon comparing them diligently, we may collect that the
following domestic aggravations of Larceny are punishable with death,
without Benefit of Clergy.
First, _Larcenies above the value of twelve pence_; committed--1st. In
a church or chapel, with or without violence or breaking the same; 23
Henry VIII. cap. 1: 1 Edward VI. cap. 12.--2d. In a booth or tent, in
a market or fair, in the day time or in the night, by violence or
breaking the same; the owner or some of his family, being therein; 5
and 6 Edward VI. cap. 9.--3d. By robbing a dwelling house in the day
time, (which _robbing_ implies a _breaking_,) any person being
therein: 3 and 4 William and Mary, cap. 9.--4th. By the same Act, (and
see the Act 23 Henry VIII. cap. 1.) in a dwelling house, by day or by
night; without breaking the same, any person being therein, and put in
fear: which amounts in law to a Robbery; and in both these last cases
the _Accessary before the fact_ is also excluded from the benefit of
Clergy.
Secondly; _Larcenies to the value of five shillings_; committed--1st.
By breaking any dwelling house, or any outhouse, shop, or warehouse
thereunto belonging, in the day time; although no person be therein,
which also now extends to aiders, abettors, and accessaries before the
fact: 39 Elizabeth, cap. 15; see also 3 and 4 William and Mary, cap.
9.--2d. By privately stealing goods, wares, or merchandise in any
shop, warehouse, coach-houses, or stable, by day or night: though the
same be not broken open, and though no person be therein: which
likewise extends to such as assist, hire, or command the offence to be
committed: 10 and 11 William III. cap. 23.
Lastly; _Larcenies to the value of forty shillings_ from a dwelling
house, or its outhouses, although the same be not broken, and whether
any person be therein or not; unless committed against their masters,
by apprentices, under age of fifteen; 12 Anne, stat. 1. cap. 7.
Piracy is felony against the goods of the Subject by a robbery
committed at sea.--It is a capital offence by the civil law, although
by Act of Parliament, it may be heard and determined, according to the
rules of the common law, as if the offence had been committed on land.
The mode of trial is regulated by the 28th of Henry VIII. cap. 15; and
further by the Acts 11 and 12 William III. cap. 7. and 39 George III.
cap. 37; which also extend to other offences committed on the High
Seas.
Felonies _against the Dwelling or Habitation of a man are of two
kinds; and are denounced_ Arson _and_ Burglary.
_Arson_ or _Arsonry_ is a very atrocious offence--it is defined to be
_the malicious burning of the House of another either by night or by
day_. It is in this case a capital offence; but if a man burns his own
house, without injuring any other, it is only a misdemeanor,
punishable by fine, imprisonment, or the pillory.
By the 23d of Henry the Eighth, cap. 1. the capital part of the
offence is extended to persons, (whether principals or accessaries,)
burning dwelling houses; or barns wherein corn is deposited; and by
the 43d of Elizabeth, cap. 13, burning barns or stacks of corn in the
four northern counties, is also made Felony without Benefit of Clergy.
By the 22d and 23d of Car. II. cap. 7, it is made felony to set fire
to any stack of corn, hay, or grain; or other outbuildings, or kilns,
maliciously in the night time; punished with transportation for seven
years.
By the 1st George I. cap. 48, it is also made single felony to set
fire to any wood, underwood, or coppice.
Other burnings are made punishable with death, without Benefit of
Clergy; _viz._ Setting fire to any house, barn, or outhouse, or to any
hovel, cock, mow, or stack of corn, straw, hay, or wood: or the
rescuing any such offender: 9 George I. cap. 22.--Setting fire to a
coal-mine: 10 George II. cap. 32.--Burning, or setting fire to any
wind-mill, water-mill, or other mill: (as also pulling down the same:)
9 George III. cap. 29; but the offender must be prosecuted within
eighteen months.--Burning any ship; to the prejudice of the owners,
freighters, or underwriters: 22 and 23 Charles II. cap. 11; 1 Anne,
stat. 2. cap. 9; 4 George I. cap. 12.--Burning the King's ships of war
afloat, or building: or the Dock-yards, or any of the buildings,
arsenals, or stores therein: 12 George III. cap. 24.--And finally,
_Threatening_ by anonymous or fictitious letters to burn houses,
barns, &c. is by the Act 27 George II. cap. 15, also made felony
without Benefit of Clergy.
Burglary is a felony at common law; it is described to be _when a
person, by night, breaketh into the mansion of another, with an intent
to commit a felony; whether the felonious intent be executed or not_.
By the 18th of Elizabeth, cap. 7, the Benefit of Clergy is taken away
from _The Offence_; and by the 3d and 4th William and Mary, cap. 9,
from _Accessaries before the fact_.--By the 12th of Anne, stat. 1,
cap. 7, if any person shall enter into a mansion or dwelling house, by
day or by night, without breaking into the same, with an intent to
commit any felony; or being in such houses, shall commit any felony;
and shall, in the night time, _break_ the said house _to get out_ of
the same, he is declared guilty of the offence of burglary, and
punished accordingly.
It is, without doubt, highly expedient that this Offence should be
punished more severely than any other species of theft; since, besides
the loss of property, there is something very terrific in the mode of
perpetration, which is often productive of dreadful effects.
The ancient laws made a marked distinction in the punishment, between
this Offence, which was called Hamsokne, (and which name it retains at
present in the Northern parts of this kingdom) and robbing a house in
the day time.
There are many other felonies which have been made capital
(particularly within the present century) which do not properly fall
within the class above discussed;--for an account of these the reader
is referred to the general Catalogue of offences specified in a
subsequent Chapter.
The number of these various capital Offences upon which the judgment
of death must be pronounced, if the party is found guilty, has been
already stated to amount to above one _hundred and sixty_.--And yet if
a full consideration shall be given to the subject, it is believed
that (excepting in cases of _Treason_, _Murder_, _Mayhem_, and some
aggravated instances of Arsonry) it would be found that the punishment
of death is neither politic nor expedient.
At any rate, it must be obvious to every reasoning mind, that such
_indiscriminate rigour_, by punishing the petty pilferer with the same
severity as the atrocious murderer, cannot easily be reconciled to the
rights of nature or to the principles of morality.
It is indeed true, in point of practice, that in most cases of a
slight nature, the mercy of Judges, of Juries, or of the Sovereign,
saves the delinquent; but is not the exercise of this mercy rendered
so necessary on every occasion, "_a tacit disapprobation of the
laws_?"[14]
[Footnote 14: Beccaria. _See ante page_ 45.]
Cruelty, in punishment for slight Offences, often induces Offenders to
pass on from the trifling to the most atrocious crime.--Thus are these
our miserable fellow-mortals rendered desperate; whilst the laws,
which ought to soften the ferocity of obdurate minds, tend to corrupt
and harden them.
What education is to an individual, the Laws are to Society. Wherever
they are sanguinary, delinquents will be hard-hearted, desperate, and
even barbarous.
However much our ancestors were considered as behind us in
civilization, yet their laws were infinitely milder, in many
instances, than in the present age of refinement.
The real good of the State, however, unquestionably requires that not
only adequate punishments should be impartially inflicted, but that
the injured should obtain a reparation for their wrongs.
Instead of such reparation, it has been already stated, and indeed it
is much to be lamented, that many are induced to desist from
prosecutions, and even to conceal injuries, because nothing but
expence and trouble is to be their lot: as all the fruits of the
conviction, where the criminal has any property, go to the
State.--That the State should be the only immediate gainer by the
fines and forfeitures of criminals, while the injured party suffers,
seems not wholly consonant to the principles either of _justice_,
_equity_, or _sound policy_.
Having said thus much on the subject of severe and sanguinary
Punishments, it may not be improper to mention a very recent and
modern authority, for the total abolition of the Punishment of death.
This occurred in the Imperial Dominion, where a new code of criminal
law was promulgated by the late Emperor, JOSEPH II. and legalised by
his edict in 1787.
This Code, formed in an enlightened age, by Princes, Civilians, and
Men of Learning, who sat down to the deliberation assisted by the
wisdom and experience of former ages, and by all the information
possible with regard to the practice of civilized modern nations; with
an impression also upon their minds, that sanguinary punishments, by
death, torture, or dismemberment are not necessary, and ought to be
abolished; becomes an interesting circumstance in the annals of the
world.
"THE EMPEROR _in his edict signed at Vienna the 13th of
January, 1787, declares his intention to have been to give a
precise and invariable form to Criminal Judicature; to
prevent arbitrary interpretations; to draw a due line
between criminal and civil offences, and those against the
state; to observe a just proportion between offences and
punishments, and to determine the latter in such a manner as
that they may make more than merely a transient
impression.--Having promulgated this new code, he abrogates,
annuls, and declares void all the ancient laws which
formerly existed in his dominions_.--Forbidding at the same
time every criminal Judge to exercise the functions of his
office, on any but those who shall be brought before him,
accused of a criminal offence expressed in the new code."
This system of criminal law is so concise as to be comprehended in
less than one hundred octavo pages. It commences with laying down
certain general principles, favourable in their nature both to
humanity and public liberty.--In determining the Punishments (which
will hereafter be very shortly detailed) the following rules are laid
down for the Judges.
"_The criminal Judge should be intent on observing the just
proportion between a criminal Offence and the punishment
assigned it, and carefully to compare every
circumstance.--With respect to the_ Offence, _his principal
attention should be directed to the degree of malignity
accompanying the bad action,--to the importance of the
circumstance connected with the Offence,--to the degree of
damage which may result from it,--to the possibility or
impossibility of the precautions which might have been made
use of to prevent it.--With respect to the_ Criminal, _the
attention of the Judge should be directed to his youth,--to
the temptation or imprudence attending it,--to the
punishment which has been inflicted for the same Offence,
and to the danger of a relapse_."
Those denominated 1. Offences against the Sovereign and the
Criminal Offences, State; including High Treason.
_viz._ 2. Offences against human life and bodily
safety.
3. Offences against honour and liberty.
4. Offences against possessions and rights.
Those denominated 5. Offences that endanger the life or health
Civil Offences, of the Citizens.
_viz._ 6. Offences that affect the fortunes or rights
of the Citizens.
7. Offences that tend to the corruption of
morals.
The offences are divided into seven different classes.
It is impossible, within the narrow compass of this Work, to enter
into a particular detail of the various subdivisions of the Crimes and
Punishments explained in this Code; which must be perused, in order to
form a clear and comprehensive view of the subject. The following
Specification therefore contains merely the _heads_ or outlines of the
System; which it is hoped may be found, from the mode of its
arrangement, to convey to the reader both amusement and instruction.
ABSTRACT
OF
_THE CRIMINAL CODE_
OF THE
EMPEROR JOSEPH II.
* * * * *
CRIMES. PUNISHMENTS.
_High Treason._