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Women are within this ftatute, and if they commit this crime with a beaft, incur the fame punishment; and the word perfon was used in the act to extend it to them. This extenfion was thought more effentially neceffary, as fome time before the making of this act a great lady had been guilty of this abominable beftiality with a baboon, and had conceived by it.

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SECT. II:

Of Rape.

ITH regard to Rape, the offence being capital, our tendernefs for life makes the law require fuch strong evidence of the crime, that the proof is extremely nice and difficult, and the law therefore, in fome measure, useless: whereas, was it more mild, it would be more efficacious, and the violation of chastity would be easier prevented.

By the law of Egypt, Rapes were punished by cutting off the offending parts.

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By the Athenian laws, he who ravished a virgin was obliged to marry her. By one of Solon's laws, he, who committed a Rape was fined one hundred drachms; and, by a subfequent law, this penalty was doubled.

It was a long time before this crime was punished capitally by the Roman law; but, at length, by the Lex Julia, the penalty of committing a Rape with force was made death.

In like manner, by the Jewish law, a forcible Rape was punished with death; but if a man deflowered a virgin without force, he was to pay her father fifty fhekels of filver, and to marry her, without having it in his power to put her away during his life.

By the law of Scotland, Rape is punishable with death, and confifcation of moveables antiently, in this kingdom, Rape was felony, and punished with death, efpecially if the party ravifhed were a virgin; unless fuch virgin would accept of the of fender for her husband, in which cafe fhe might

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might fave his life by marrying him; for, if the demanded him for her husband before judgment paffed, he escaped punish

ment.

But by the Stat. Weftm. 2. her election is taken away. Afterwards the crime of Rape was confidered as a great misdemeanor only, and not as a felony; but it was nevertheless dreadfully punished, by the lofs of eyes and privy members, as we read in a law of William the Norman, Si quis aliquam vi oppreffiffet, genitalibus privabitur ar

mis.

By the Stat. of Weftm. 3 Edw. I. c. 1 3. it was reduced to a trefpafs, fubjecting the offender to two years imprisonment, and a fine at the king's will; but the Stat. Weftm. 2. c. 34. made it felony again; and by the 18th Eliz. it is excluded from the benefit of the clergy.

Though this offence is of the most heinous nature, and, if tolerated, would be fubverfive of all order and morality, yet it feems highly impolitic to punish it with

death.

death. Atrocious as it is, yet it has its root in a propenfity natural to man; and the irregular and inordinate gratification of unruly appetite, to the injury of individuals, and the prejudice of fociety, may be properly punished, without deftroying the offender.

The moft natural punishment feems to be that of compelling the criminal to marry the injured party; and this fhould be exacted in all forcible violations of female chastity, and even in all cases of seduction without force, where the feducer shall afterwards abandon and defert the partner of his guilt.

But where the injured party fhall refufe to marry the offender, in that cafe the criminal ought to be feverely punished by fine, and confinement to real hard labour.

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SECT. III.

Of forcible Marriage, or Defilement of Women.

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F forcible Marriage, &c. it is obfervable, that by confining the offence to women of eftate only, moral principles are made to yield to political confiderations; and the fecurity of property is deemed more effential than the prefervation of female chastity.

By the Stat. 3 Hen. VII. c. 2. it is enacted, that if any perfon fhall take away any woman, having lands or goods, or that is heir apparent to her ancestor, by force and against her will, and marry or defile her, the takers, procurers, abettors, and receivers of the woman taken away against her will, and knowing the fame, shall be deemed principal felons; but as to procurers and acceffories, they are, before the offence committed, to be excluded the benefit of clergy by 39 Eliz. c. 9.

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