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 cla.s.s 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 p.r.o.nounced, 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 pa.s.s 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 a.s.sisted 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 circ.u.mstance 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 a.s.signed it, and carefully to compare every circ.u.mstance.--With respect to the_ Offence, _his princ.i.p.al attention should be directed to the degree of malignity accompanying the bad action,--to the importance of the circ.u.mstance 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 cla.s.ses.

It is impossible, within the narrow compa.s.s 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 amus.e.m.e.nt and instruction.

ABSTRACT

OF

_THE CRIMINAL CODE_

OF THE

EMPEROR JOSEPH II.

CRIMES. PUNISHMENTS.

_High Treason._

1. Laying violent hands on Confiscation of property; the Sovereign, whether injury imprisonment for not less than 30 results from it or not. years; and branding on each cheek with the mark of a gallows[15] if the prisoner is remarkably depraved.

2. Attacking the Sovereign Imprisonment 8 years, and not by speeches or writings. less than 5.

3. Persons conspiring and Confiscation of Property and taking up arms, or entering 30 years' imprisonment, with into alliance with an enemy, branding as above.

&c. are guilty of _sedition and tumult_.

_Criminal Offences relative to the Sovereign and the State._

4. He who enters the house Imprisonment, not less than or abode of another, and uses 1 month, nor more than 5 years, violence against his person, and condemnation to the public goods, or possession, is works.

guilty of _open force_.

5. He who violently resists Imprisonment not less than the authority of a Judge, or 1 month, nor more than 5 years; Officer of Justice, although but where there is an injury and no wound result, is guilty of wounds, not exceeding 8 nor _open violence_. less than 5.

6. Breach of trust, in a Imprisonment not less than 8, Governor, or Charge des nor more than 12 years, and Affaires; neglecting the condemnation to the public works, interest of the State, or and in aggravated cases, the betraying his Country, &c. pillory.[16]

7. A Judge, who from Imprisonment not less than 8, nor corruption or pa.s.sion is more than 12 years, and guilty of an _abuse of condemnation to the public works, judicial authority_. and in aggravated cases, the pillory.

8. Accomplices attempting Imprisonment not less than 1 to corrupt a Judge. month, nor more than 5 years; and condemnation to the public works.

9. Forgery, by attempting to Imprisonment not less than counterfeit public bills of 30 years, and branding with a the State which circulate as hot iron.

money.

10. Falsifying a public bill, Imprisonment not less than 12, by changing or altering it, nor more than 15 years, and or imitating the signatures. condemnation to the public works.

11. Coining false money, Imprisonment not less than 1 resembling the Coin of the month, nor more than 5 years, Hereditary Dominions, or with condemnation to the public foreign Coin current by law; works.

even though of equal weight and quality, or superior to the current Coin.