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 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 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 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 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.

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 rest.i.tution, 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 circ.u.mstance 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 a.s.saulted, 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 a.s.sist, 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 princ.i.p.als 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, c.o.c.k, 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, a.r.s.enals, or stores therein: 12 George III. cap. 24.--And finally, _Threatening_ by anonymous or fict.i.tious letters to burn houses, barns, &c. is by the Act 27 George II. cap. 15, also made felony without Benefit of Clergy.