houfe or goods: as when a woman kills one who attempts to ravish her, or when one kills another attempting to murder him or rob him, abroad or in his own house.

But if the affault in the house were in the day-time, not to rob, but to beat another, it would be a killing se defendendo.

Upon the special matter found in cafe of juftifiable Homicide, the party is to be dif miffed without any forfeiture or pardon pur

chafed.

SECT. II.

Of Judgment and Forfeiture in Se Defendendo.

TH

HE Judgment and Forfeiture in Se Defendendo is the fame as in chancemedley, and liable to the fame exceptions.

Indeed, it seems uncommonly absurd and unjust, to make a man forfeit his goods and chattels for acting in conformity to the first

law

را

law of nature, which dictates felf-defence. The expiation of uncertain murder among the Jews, was grounded on reafon, but there is no reason whatever for fuch rigour in cafes of felf-defence.

CHA P. IX,

Of private Felonies against the
Body of the Subject.

PRI

RIVATE Felonies against the Body of the Subject may be committed, 1: By fodomy. 2. By rape. 3. By forcible marriage or defilement of women. 4. By polygamy. 5. By maihem.

All these offences (polygamy excepted) are capital; but perhaps in fome of them milder punishments might more effectually prevent the perpetration of fuch shocking

crimes.

1

SECT.

I.

SECT. I.

Of Sodomy.

WITH

WITH refpect to the first, which is of fuch an unnatural and abominable nature, that it is difficult even to credit its existence, the severity of the punishment does not feem calculated to diminish the frequency of the offence, though by the laws of moft nations, antient and modern, it has been capitally punished.

Of the laws of other nations in Sodomy.

Among the Grecians, the punishment of this abominable vice was fometimes difcretionary, and at other times punished with death.

Among the Romans, by the Scatania Lex, the penalty was only pecuniary, but it was afterwards made death.

By the Jewish law it was punished with

death.

Cc

By

By the law of France the offender fuffers death by burning.

By the law of Scotland it is punishable by death.

It does not appear, that by the common law of England this deteftable fin was capitally punished. We read that in the time of Edw. III. a complaint was made in parliament, that the Lombards had brought this fhameful fin into the realm

Our antient authors, fays Lord Coke, conclude that it merits death, ultimum fupplicium, though they differ in the manner of inflicting it.

Briton fays, that fodomites and mifcreants shall be burned, as they were by the judgment of Almighty God.

Fleta faith, Pecorantes et Sodomite in terra vivi confodiantur; and, with this punishment, the Mirrour agrees, pur le grand abomination. And in another place, he

faith,

faith, Sodomie eft crime de majestie vers le roy celeftie.

In antient times, the man was hanged for this offence, and the woman was drowned, of which we find examples in the reign of Rich. I. And this explains the antient franchifes de furca et foffa, of the gallows and the pit, for the hanging upon the one, and drowning in the other.

But fossa is taken away, and furca remains; and, at this time, the judgment in all cafes of felony is, that the perfon attainted shall be hanged by the neck, until he or she be -dead.

This crime is expressly forbidden in holy writ; cum mafculo non commifcearis coitu fæmineo, quia abominatio eft. Cum omni pecore non coibis, nec maculaberis cum eo. Mulier non fuccumbet jumento, nec miscebitur ei, quia fcelus eft, &c.

The act 25 Hen. VIII. hath adjudged it felony, and hath taken away the benefit of clergy from the delinquent.