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Memoir, Correspondence, And Miscellanies, From The

Qui calorem stupri induxerunt


Whenever

sentence of death shall have been pronounced against any person for treason or murder, execution shall be done on the next day but one after such sentence, unless it be Sunday, and then on the Monday following.*

* Beccaria, Sec. 19; 25 G. 2. c. 37.

Whosoever shall be guilty of Rape,* Polygamy,** or Sodomy,*** with man or woman, shall be punished, if a man, by castration,**** if a woman, by cutting through the cartilage of her nose, a hole of one half inch in diameter at the least.

* 13 E. 1. c. 34. Forcible abduction of a woman having substance, is felony by 3 H. 7, c 2; 3. Inst. 61; 4 Bl. 208. If goods be taken, it will be felony as to them, without this statute: and as to the abduction of the woman, quaere if not better to leave that, and also kidnapping, 4 Bl. 219. to the Common law remedies, viz. fine, imprisonment, and pillory, Raym. 474; 2 Show. 221; Skin. 47; Comb. 10. the writs of _Homine replegiando_, Capias in Withernam, Habeas corpus, and the action of trespass? Rape was felony at the Common law. 3 Inst. 60 but see 2 Inst. 181. Further--for its definition see 2 Inst. 180. Bracton L.3. 28. Sec. 1. says, the punishment of rape is '_amissio membrorum, ut sit membrumpro membra, quia virgo, cum corrumpitur, membrum amittit, et ideo corruptor puniatur in eo in quo deliquit; oculos igitur amittat

propter aspectum decoris quo virginem concupivit; amittat et testiculos qui calorem stupri induxerunt. Olim quidem corruptores virginitatis et castitatis suspendebantur et eorum fautores, &c. Modernis tamen temporibus aliter observatur_,' &.c. And Fleta, '_Solet justiciarius pro quolibet mahemio ad amissionem testiculorum vel oculorum convictum coudemnare, sed non sine errore, eo quod id judicium nisi in corruptione virginum lantum competebat; nam pro virginitatis corruptione solebant abscidi et merito judicari, ut sic pro membro quod abstulit, membrum per quod deliquit amitteret, viz. lesticulos, qui calorem stupri induxerunt_,' &c. Fleta. L. 1. c. 40. Sec. 4. 'Gif theow man theowne to nydhffimed genyde, gabete mid his eowende: Si servus servam ad sfuprum coegerit, compenset hoc virga sua virili. Si quis pnellam,' &c. Ll.AEliridi. 25. 'Hi purgst femme per forze forfait ad les membres.' LI. Gul. Conq. 19.

** 1 Jac. 1. c. 11. Polygamy was not penal till the statute of 1 Jac. The law contented itself with the nullity of the act. 4 Bl. 163. 3 Inst. 88.

*** 25. H. 8. c. 6. Buggery is twofold. 1. With mankind, 2. with beasts. Buggery is the genus, of which Sodomy and Bestiality are the species. 12 Co. 37. says, In Dyer, 304. a man was indicted, and found guilty of a rape on a girl of seven years old. The court doubted of the rape of so tender a girl; but if she had been nine years old, it would have been otherwise.' 14 Eliz. Therefore the statute 18 Eliz. c. 6, says, 'For plain declaration of law, be it enacted, that if any person shall unlawfully and carnally know and abuse any woman child, under the age of ten years, &c. he shall suffer as a felon, without allowance of clergy.' Lord Hale, however, 1 P. C. 630. thinks it rape independent of that statute, to know carnally a girl under twelve, the age of consent. Yet, 4 Bl. 212. seems to neglect this opinion; and as it was founded on the words of 3 E. 1. c. 13. and this is with us omitted, the offence of carnally knowing a girl under twelve, or ten years of age, will not be distinguished from that of any other. Co. 37. says 'note that Sodomy is with mankind.' But Finch's L. B. 3. c. 24. 'Sodomitry is a carnal copulation against nature, to wit, of man or woman in the same sex, or of either of them with beasts.' 12 Co 36. says, 'It appears by the ancient authorities of the law that this was felony.' Yet the 25 H. 8. declares it felony, as if supposed not to be so. Britton, c, 9. says, that Sodomites are to be burnt. F. N. B. 269. b. Fleta, L 1. c. 37. says, 'Pecorantes et Sodomise in terra, vivi confodiantur.' The Mirror makes it treason. Bestiality can never make any progress; it cannot therefore be injurious to society in any great degree, which is the true measure of criminality _in foro cirili_, and will ever be properly and severely punished, by universal derision. It may, therefore, be omitted. It was anciently punished with death, as it has been latterly. LI AElfrid. 31. and 25 H. 8. c. 6. see Beccaria, Sec. 31. Montesq.


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