Chapter I (2)

4. Slaying the King's Chancellor or Judge in the execution
of their offices.

5. Violating the Queen, the eldest daughter of the King, or
the wife of the Heir Apparent, or eldest Son.

6. Counterfeiting the King's Great Seal, or Privy Seal.

7. Counterfeiting the King's Money, or bringing false Money
into the kingdom.

This detail shews how much the dignity and security of the King's person is confounded with that of his officers, and even with his effigies imprest on his Coin.--To assassinate the servant, or to counterfeit the type, is held as criminal as to destroy the Sovereign.

This indiscriminate blending of crimes, so different and disproportionate in their nature, under one common head, is certainly liable to great objections; seeing that the judgment in this offence is so extremely severe and terrible, _viz. That the offender be drawn to the gallows on the ground or pavement: That he be hanged by the neck, and then cut down alive: That his entrails be taken out and burned while he is yet alive: That his head be cut off: That his body be divided into four parts: And that his head and quarters be at the King's disposal_.--Women, however, are only to be drawn and hanged:--though in all cases of treason, they were heretofore sentenced to be burned: a cruel punishment, which, after being alleviated by the custom of previous strangulation, was at length repealed, by the Act 30 Geo. III. _c._ 48.

There are indeed some shades of difference with regard to coining money; where the offender is only drawn and hanged; and that part of the punishment which relates to being _drawn_ and _quartered_ is, to the honour of humanity, never practised. But even in cases of the most atrocious criminality, the execution of so horrid a sentence seems to answer no good political purpose.--Nature shudders at the thought of imbruing our hands in blood, and mangling the smoaking entrails of our fellow-creatures.

In most Countries and in all ages, however, Treason has been punished capitally.--Under the Roman Laws, by the _Cornelia Lex_, of which Sylla, the Dictator, was the author, this Offence was created.--It was also made a capital Crime when the Persian Monarchy became despotic.

By the Laws of China, Treason and Rebellion are punished with a rigour even beyond the severity of our judgment, for the criminals are ordained to be cut in _ten thousand_ pieces.

There is another species of Treason, called _Petty Treason_, described by the Statute of the 25th of Edward the III. to be the offence of _a Servant killing his Master, a Wife killing her Husband_, or a _Secular or Religious slaying his Prelate_.--The Punishment is somewhat more ignominious than in other capital offences, inasmuch as a _hurdle_ is used instead of a _cart_.--Here again occurs a very strong instance of the inequality of Punishments; for although the principle and essence of this Crime is breach of duty and obedience due to a superior slain, yet if a child murder his parents (unless he serve them for wages) he is not within the Statute; although it must seem evident to the meanest understanding that Parricide is certainly a more atrocious and aggravated offence, than either of those specified in the Statute.

By the _Lex Pompeia_ of the Romans, Parricides were ordained to be sown [Transcriber's Note: sewn] in a sack with a _dog_, a _cock_, a _viper_, and an _ape_, and thrown into the sea, thus to perish by the most cruel of all tortures.

The ancient Laws of all civilized nations punished the crime of Parricide by examples of the utmost severity.--The Egyptians put the delinquents to death by the most cruel of all tortures--mangling the body and limbs, and afterwards laying it upon thorns to be burnt alive.

By the Jewish Law it was death for children to curse, or strike their parents; and in China, this crime was considered as next in atrocity to Treason and Rebellion, and in like manner punished by cutting the delinquent in _one thousand_ pieces.

The Laws of England however make no distinction between this crime and common Murder; while it is to be lamented that offences far less heinous, either morally or politically considered, are punished with the same degree of severity; and it is much to be feared, that this singular inequality is ill calculated to inspire that filial awe and reverence, to parents, which all human Laws ought to inculcate.

The offences next in enormity to Treason, are by the Laws of England, denominated Felonies, and these may be considered as of two kinds, _public_ and _private_.

Under the head of _Public Felonies_ we shall class the following: having peculiar relation to the State.

1. Felonies relative to the Coin of the Realm.
2. ----------------- to the King and his Counsellors, &c.
3. ----------------- to Soldiers and Marines.
4. ----------------- to embezzling Public Property.
5. ----------------- to Riot and Sedition.
6. ----------------- to Escape from Prison.
7. ----------------- to Revenue and Trade, &c.

We consider as comprehended under _Private Felonies_ the following crimes committed, 1. _Against the Life_, 2. _the Body_, 3. _The Goods_, 4. _The Habitation of the Subject_.

Against 1. By Murder.
Life. 2. By Man-slaughter.
3. By Misadventure.
4. By Necessity.

Against the 1. Sodomy.
Body. 2. Rape.
3. Forcible Marriage.
4. Polygamy.
5. Mayhem.

Against 1. Simple Larceny.
Goods. 2. Mixt Larceny.
3. Piracy.

Against the 1. Arson.
Dwelling or 2. Burglary.
Habitation.

Those Crimes which we have denominated _Public Felonies_ being merely of a political nature, it would seem that the ends of justice would be far better answered, than at present, and convictions oftener obtained, by different degrees of Punishment short of Death.

With regard to _Private Felonies_, it may be necessary to make some specific observations----

The first, in point of enormity, is _Murder_, which may be committed in two Ways:--first, upon _one's self_, in which case the offender is denominated _Felo de se_ or a _Self-murderer_;--secondly, by killing another person.

The Athenian Law ordained, that persons guilty of Self-murder should have the hand cut off which did the murder, and buried in a place separate from the body; but this seems of little consequence.--When such a calamity happens, it is a deplorable misfortune; and there seems to be a great cruelty in adding to the distress of the wife, children, or nearest kin of the deceased, by the forfeiture of his whole property; which is at present confiscated by Law.

By the Law of England, the judgment in case of Murder is, that the person convicted shall suffer death and that his body shall be dissected.

The Laws of most civilized nations, both ancient and modern, have justly punished this atrocious offence with death. It was so by the Laws of Athens, and also by the Jewish and Roman Laws.--By the Persian Law Murderers were pressed to death between two stones; and in China, persons guilty of this offence are beheaded, except where a person kills his adversary in a duel, in which case he is strangled.--Decapitation, by the Laws of China, is considered the most dishonourable mode of execution.

In the ruder ages of the world, and before the manners of mankind were softened by the arts of peace and civilization, Murder was not a capital crime: Hence it is that the barbarous nations which over-ran the Western Empire, either expiated this crime by private revenge, or by a pecuniary composition.--Our Saxon ancestors punished this high offence with a fine; and they too countenanced the exercise of that horrid principle of revenge, by which they added blood to blood.--But in the progress of civilization and Society, the nature of this crime became better understood; private revenge was submitted to the power of the Law; and the good King Alfred first made Murder a capital offence in England.

In this case, as in that of Self-murder, the property of the murderer goes to the State; without any regard to the unhappy circumstances of the families either of the murdered or the guilty person, who may be completely ruined by this fatal accident.--A provision which seems not well to accord with either the justice or mildness of our Laws.

Man-slaughter is defined to be _The killing another without malice, either express or implied: which may be either, voluntarily, upon a sudden heat; or involuntarily, but in the commission of some unlawful Act_. And the Punishment is, _that the person convicted shall be burnt in the hand, and his goods forfeited_.--And offenders are usually detained in prison for a time not exceeding one year, under the Statutes regulating the Benefit of Clergy.

Homicide by _Misadventure_ is, when _one is doing a lawful act, without intent to hurt another_, and _death ensues_.--For this offence a pardon is allowed of course; but in strictness of Law the property of the person convicted is forfeited; the rigour of which, however, is obviated by a Writ of Restitution of his goods, to which the party is now, by long usage, entitled of right; only paying for suing out the same.

Homicide _by necessity_ or in _Self-defence_, is another shade of Murder, upon which no punishment is inflicted: and in this is included what the Law expresses by the word _Chance-medley_: which is properly applied to such killing as happens in self-defence upon a sudden rencounter. Yet, still by strictness of Law, the goods and chattels of the person charged and convicted are forfeited to the Crown; contrary, as it seems to many, to the principles of Reason and Justice.

It should be recollected that in all cases where the Homicide does not amount to Murder or Man-slaughter, the Judges permit, nay even direct, a verdict of acquittal.--But it appears more consonant with the sound principles of Justice, that the Law itself should be precise, than that the property of a man should, in cases of _Misadventure_, _Chance-medley_, and _Self-defence_ depend upon the construction of a Judge, or the lenity of a Jury: Some alteration therefore, in the existing Laws, seems called for in this particular.

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 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._

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 passion 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.

12. Coining false money, by Imprisonment not less than 12,
using a bad alloy; and by nor more than 15 years, and
fraud giving false money the condemnation to the public works.
quality of good.

13. Accomplices in Imprisonment not less than 8,
fabricating tools for nor more than 12 years, and
Coining. condemnation to the public works.

14. Assisting in the escape Imprisonment not less than 1
of a prisoner. month, nor more than 5 years; and
condemnation to the public works.

15. Magistrates granting Imprisonment not less than 12,
indulgencies contrary to nor more than 15 years; and
law, &c. deprivation of authority.

* * * * *

_Criminal Offences against Human Life and Bodily Safety._

16. _Murder_,--by Imprisonment not less than 15,
wounding a man so that death nor more than 30 years; the latter
ensues, including all in cases of consanguinity.[17]
accomplices.

17. Killing a man in Imprisonment not less than 1
self-defence, if the slayer month, nor more than 5 years, and
exceed the bounds of condemnation to the public works.
necessity.

18. _Murder_,--with an Imprisonment not less than 30
intention to rob or steal the years, with the hot iron; in
property of the person, or cruel cases, to be closely
other property intrusted to chained, with corporal
his care. punishment[18] every year.

19. Assassination by Condemnation to the Chain,[19]
stratagem, arms, or poison. not less than 30 years.

20. Inducing another to commit Imprisonment not less than 5,
Murder; by caresses, promises, nor more than 8 years, and
presents, or threats; whether condemnation to the public
death is the result or not. works.--If murder is committed,
the criminal shall suffer as a
murderer.

21. _Duelling_,--or If death ensues; condemnation to
challenging another to combat the chain for 30 years, where the
with murderous weapons on survivor is the challenger. If
whatever pretence the challenge the survivor be the party
be grounded.--The person challenged, imprisonment, not
accepting the challenge is more than 12, nor less than 8
equally guilty, after agreeing years, and condemnation to the
to combat with murderous weapons. public works. If neither fall,
imprisonment to the challenger,
not less than 1 month, nor more
than 5 years; and hard labour in
the public works.

22. Accomplices acting as Imprisonment not less than 1,
assistants and seconds. nor more than 5 years.

23. A woman with child using Imprisonment not less than 15,
means to procure abortion. nor more than 30 years; and
condemnation to the public works:
augmented when married women.

24. Accomplices advising and Imprisonment not less than 1
recommending abortion. month, nor more than 5 years,
and condemnation to the public
works.--Punishment increased
when the accomplice is the father
of the infant.

25. Exposing a living infant, Imprisonment not less than 8,
in order to abandon it to danger nor more than 12 years; to be
and death; or to leave its increased under circumstances of
deliverance to chance; whether aggravation.
the infant, so exposed, suffers
death or not.

26. Maiming by malignant Imprisonment not less than 1
assault. month, nor more than 5 years.

27. Suicide or self-murder, The body to be thrown into
without any sign of insanity. the earth by the executioner, and
the name of the person and crime
to be publicly notified and fixed
on a gallows.

* * * * *

_Criminal Offences against Honour and Liberty._

28. _Calumny_--false Imprisonment not less than 1
accusation--injuring a man of month, nor more than 5 years,
his right, or robbing him of his and condemnation to the public
good name unjustly and without works; with corporal punishment
proof (See post. No. 56.) if the party receive injury.

29. _Rape_,--or forcibly, Imprisonment not less than 3
by associates, threatnings, or years, nor more than 12, and
shewing weapons, overpowering condemnation to the public works.
and forcing a woman to submit,
and shamefully abusing her by
rendering her incapable of
opposition.

30. Accomplices aiding in the Imprisonment not less than 5,
commission of a rape. nor more than 8 years; and
condemnation to the public works.

31. _Forcibly carrying a Imprisonment not less than 15
person out of the State_ years, nor more than 30 years;
without his will, or the augmented if the criminal is a
consent of the Magistrate, natural-born subject.
enlisting men into foreign
service, &c.

32. _Forcibly, or by Imprisonment not less than 1
address, secretly carrying month, nor more than 5 years; if
away a Minor_ past the years no injury result--otherwise
of infancy, under the care of imprisonment, not less than 8, nor
parents or guardians, &c. more than 12 years, and
condemnation to the public works.

33. _Forcibly, and by Imprisonment not less than 5
address, getting possession of years, and not more than 8; and
any woman_ contrary to her condemnation to the public
will, obtaining her consent to works.
marriage, or shameful
debauchery, and carrying her
from her abode; whether
the design is accomplished or
not.

34. _Forcibly carrying away Imprisonment not less than 1
a woman known to be bound by month, nor more than 5 years,
lawful marriage_, or under and condemnation to the public
protection of parents, and works.
without her consent.

35. Accomplices aiding and The same.
assisting.

36. _Unlawful Imprisonment_, Imprisonment not less than 1
or keeping a person in month, nor more than 5 years;
confinement against his will augmented in cases of damages.
and of his own private
authority.

* * * * *

_Criminal Offences against Possessions and Rights._

37. _Fraud._--Obtaining the Various, according to the degree
property of another by of malignity--in general by
stratagem, with an evil design imprisonment not less than 8,
on his possessions, honour, nor more than 12 years; and in
or liberty; forging title smaller offences, not less than 5
deeds or contracts, or nor more than 8; and condemnation
_altering_ the same. to the public works.

_Perjury_ in a Court of The same.
Justice, assuming a false name,
&c. &c. bearing false witness.

38. _Theft_, or taking a Imprisonment not less than 1
moveable from the possession of month, nor more than 5 years, if
another by fraud, and without unaccompanied by aggravating
his consent. (See post. No. circumstances: but in aggravated
47.) cases, imprisonment not less than
5 nor more than 8; or not less
than 8, nor more than 12 years.

39. _Accomplices in Imprisonment not less than 1
Theft_.--abettors and month nor more than 5 years, and
receivers, &c. condemnation to the public works.

40. _Robbery_--committed Imprisonment not less than 15
alone or in company, by using years, nor more than 30; if wounds
violence, or forcing a person ensue, in consequence of the
to discover effects, on which violence used. And if acts of
the offender has felonious cruelty or wounds, occasioning
views. death, then the punishment of the
chain additional.

41. _Incendiary_--where one Imprisonment not less than 8
undertakes an action from which nor more than 12 years; and
fire may ensue, or with intention condemnation to the public works:
to prejudice, or cause damage, when the flames have been stifled.
with a view to profit by the Setting fire to a Camp, Magazine,
disorder that takes place, he Barn, Timber-yard, &c.
shall be considered as an from 15 to 30 years; according
_incendiary_, whether to the circumstances of the case.
damage ensues or not.

42. _Bigamy_--where one Imprisonment not less than 5
bound by the tie of lawful nor more than 8 years, or
matrimony, concludes a second condemnation to the public works;
marriage with another person, if the person with whom the
single or married. offender contracts the second
marriage was acquainted with the
first.--If concealed, then
imprisonment not exceeding 12 nor
less than 8 years.

* * * * *

_Civil Offences that endanger the Life or Health of the Citizen._

43. _Misadventure_--where Imprisonment from 1 month
without any ill intention, by to a year, or condemnation to the
means of poisonous merchandize, public works, if the offender has
or apothecaries selling caused any immediate damage;
adulterated drugs, any person but if the cause of damage be
suffers danger or injury. remote, imprisonment from a day to
1 month.

44. Damage to man or child, Imprisonment from 1 day to
occasioned by riding or driving a month; to be augmented, in
carriages with too much speed; case death or wound should have
or injury received by persons resulted from the accident.
incapable of guarding against
danger, occasioning a wound or
death, which might have been
prevented by due vigilance.

45. Breaking Quarantine, &c. By a Military Court of
and fabricating false bills of Justice.
health.

46. Actions prejudicial to Condemnation to the public
health, or nuisance, where the works, with or without fetters;
necessary precautions prescribed either from 1 day to a month, or
by the laws of health are from 1 month to a year.
neglected in cases of dead
animals, distempers among
cattle, &c. &c.

* * * * *

_Civil Offences that affect the Fortunes and Rights of Citizens._

47. Stealing to the value of Confinement, corporal correction,
25 crowns of any moveable, and the augmentation of
when not accompanied with the punishment if requisite.
aggravating circumstances:
_Stealing Wood in a
Forest--Poaching by an
unqualified person--Stealing
Fruit from Trees--or earth
from open Fields_--though
beyond the value of 25 crowns.
(See ante, No. 38, 39.)

48. Using Frauds in playing The pillory and condemnation
at Games allowed by Law. to the public works, in atrocious
cases; also imprisonment, from
1 day to a month, and
restitution.--In case of
foreigners, the pillory and
banishment.

49. _Accomplices_ Imprisonment from 1 day to a
co-operating in such Frauds. month.

50. _Playing at prohibited A fine of 300 ducats, or
Games._ imprisonment.

51. _Persons selling Imprisonment from 1 day to a
Merchandize_ at higher prices month, which may be augmented.
than fixed by the Police, or by
false weight or measure.

52. _Adultery._ Corporal correction, or
imprisonment from 1 day to a
month.

53. _Contracting illegal Imprisonment from 1 day to a
Marriages._ (See ante, No. month, and condemnation to the
42.) public works.

54. _Servants_ receiving Corporal correction or
earnest, and engaging to serve imprisonment from 1 day to a
more masters than one, or month.
otherwise misbehaving.

55. _Masters_ giving Imprisonment from 1 day to a
servants a false character. month.

56. _Libels_ on another by Condemnation to the public
writings or disgraceful prints works; reserving the right to
or drawings, causing injury to recompence to the party wronged.
another. (See ante, No. 28.)

57. Distributing or publishing Condemnation to the public
Libels. works; reserving the right of
recompence to the party wronged.

58. _Actions_ by which Corporal correction.
danger by fire may be
occasioned; such as smoking
tobacco in a stable,
timber-yard, &c.

59. Acts of hasty petulance, Imprisonment various, or
leading to quarrels, assaults, condemnation to the public works.
and damages.

* * * * *

_Civil Offences that tend to the Corruption of Morals._

60. Wickedly insulting the Detention in the hospital destined
Supreme Being by words, deeds, for madmen; where the offender
or actions, in a public place, is to be treated like a man
or in the presence of another out of his senses, until his
person. amendment be perfect and assured.

61. Disturbing the exercise Imprisonment from 1 day to a
of Public Worship, &c. month; to be augmented by
fasting and corporal correction.

62. Writing or Preaching Pillory and Imprisonment,
against the Christian Religion, from 1 day to a month, or to a
and Catholick Faith, &c. &c. year.
Heresies, &c.

63. Committing indecencies Imprisonment from 1 day to a
in any public street or place. month, augmented by fasting.

64. Attempting to seduce or Imprisonment from 1 day to a
insult women of reputation, by month.
shameful debauchery, and using
gestures, or discourses,
tending to that purpose.

65. Carnal Commerce by Corporal Correction, and
Man with Beast, or with a condemnation to the public works;
person of the same and banishment from the place
sex,--_Sodomy_. where the offence has been
publicly scandalous.

66. Consenting to shameful Condemnation to the public
debauchery in his house; works, from 1 month to 1 year;
Keeping a _Bawdy House_. to be augmented when an innocent
person has been seduced;
second offence, the pillory.

67. Any person, man or woman, Imprisonment from 1 month
making a business of to a year; second offence,
prostitution, and deriving punishment double, and augmented
profit from thence. by fasting and corporal
correction.

68. Dealing in Books, Pictures, Imprisonment from 1 day to 1
or Prints which represent month.
indecent actions.

69. Disguising in masks, and The same.
obtaining admission into
societies, and secret
fraternities not notified to
the Magistrate.

70. Harbouring in dwellings The same.
persons not known to have an
honest mean of living.

71. Banished persons, from Corporal correction, to be
the whole of the Austrian doubled at each successive return;
Dominions--returning, &c. and the offender to be banished
from the Hereditary Dominions.

[Footnote 15: In cases where a criminal appears to be remarkably depraved, and that the apprehensions he may excite require such precautions, he shall be branded on each cheek with the mark of a gallows, so visibly and strongly impressed as not to be effaced either by time or any other means whatever.]

[Footnote 16: This punishment is different from the pillory in England. In the German Language it signifies an exposure on the public theatre of shame. The Criminal is chained and guarded on an elevated scaffold, and exposed an hour at a time, with a paper on his breast denoting his offence.]

[Footnote 17: When a criminal is condemned to severe imprisonment, he has no bed but the floor, no nourishment but bread and water, and all communication with relations, or even strangers, is refused him. When condemned to milder imprisonment, better nourishment is allowed; but he has nothing to drink but water.]

[Footnote 18: Corporal punishment is inflicted with a whip, rod, or stick, publicly, on the criminal; the degree of punishment (within 100 lashes or strokes at one time) depends on the sound prudence of the Judge.]

[Footnote 19: The punishment of the Chain is inflicted in the following manner. The criminal suffers severe imprisonment, and is so closely chained, that he has no more liberty than serves for the indispensable motion of his body.--Chained criminals suffer a corporal punishment once a year, as an example to the Public.]

In contemplating the various component parts of this Code, it is easy to discover that although some features of it may be worthy of imitation, upon the whole it is not suited either to the English constitution or the genius of our people. It is, however, a curious and interesting document, from which considerable information may be drawn; if ever that period shall arrive when a revision of our own criminal Code (in many respects more excellent than this) shall become an object of consideration with the Legislature.--At all events it strongly evinces the necessity of adapting the laws to the circumstances and situation of the Government; and of the people whose vices are to be restrained.

The total abolition of the Punishment of death (excepting in military offences cognizable by Courts Martial) is a very prominent feature in this Code; which appears to have been founded in a great measure on the principles laid down by the Marquis Beccaria, in his Essay on Crimes and Punishments: That able writer establishes it as a maxim, which indeed will scarcely be controverted--"That the severity of Punishment should just be sufficient to excite compassion in the spectators, as it is intended more for them than the criminal.--A punishment, to be just, should have only that degree of severity which is sufficient to deter others, and no more"--This authour further asserts, "That perpetual labour has in it all that is necessary to deter the most hardened and determined, as much as the punishment of death, _where every example supposes a new crime_:--perpetual labour on the other hand, affords a frequent and lasting example."[20]

[Footnote 20: The punishment of death is not authorized by any right.--If it were so, how could it be reconciled to the maxim, that a man has no right to kill himself?

The punishment of death is a war of a whole nation against a citizen, whose destruction is considered as necessary or useful to the public good.--If I can demonstrate that it is neither necessary nor useful, I shall have gained the cause of humanity.--If the experience of all ages be not sufficient to prove that the punishment of death has never prevented determined men from injuring society--if the example of the Romans--if twenty years' reign of Elizabeth, Empress of Russia, be not sufficient, let us consult human nature in proof of my assertion.